Steen v. Modern Woodmen of America

• Citation: 296 Ill. 104,129 N.E. 546
• Decision Date: 03 February 1921
• Docket Number: No. 13514.,13514.
• Parties: STEEN v. MODERN WOODMEN OF AMERICA.
• Court: Supreme Court of Illinois

296 Ill. 104

129 N.E. 546

STEEN

v.MODERN WOODMEN OF AMERICA.

No. 13514.

Supreme Court of Illinois.

Dec. 21, 1920.

Rehearing Denied Feb. 3, 1921.

Action by Louisa W. Steen against the Modern Woodmen of America. Judgment for defendant affirmed on appeal to Appellate Court, and plaintiff further appeals on grant of certificate of importance.

Affirmed.Appeal from the First Branch, Appellate Court, First District, on Appeal from the Superior Court, Cook County; Joseph H. Fitch, Judge.

Vincent D. Wyman, Harry C. Kinne, Charles E. Carpenter, and Walter M. Fowler, all of Chicago, for appellant.

Truman Plantz, of Warsaw, George G. Perrin, of Rock Island, and George V. McIntyre, of Chicago, for appellee.

THOMPSON, J.

Appellant filed her declaration in the superior court of Cook county against appellee, alleging that appellee is a corporation organized under the laws of this state for the purpose of providing death benefits to the beneficiaries of its members upon payment of certain assessments and compliance with certain requirements and conditions; that in 1897 appellee issued its benefit certificate to Albert F. Steen, which certificate named appellant as beneficiary; that on the 7th day of May, 1910, Albert F. Steen disappeared from his home in the city of Chicago and has been unaccountably absent ever since; that he left with the intention of returning the same day, but has never returned; that diligent and continuous search and inquiry have been made for him by appellant, but she has been and is wholly unable to find or locate him; that on the 7th day of May, 1917, the absence of Albert F. Steen had continued 7 years, and that Albert F. Steen was presumed by law to be dead; that Albert F. Steen died May 7, 1917; that appellant is the widow and beneficiary of deceased; that appellant notified appellee shortly after such disappearance and has since fully informed appellee concerning the same; that October 15, 1917, appellant gave appellee notice in writing of the disappearance and absence and requested payment of benefits under the certificate; that all required dues and assessments have been fully paid on behalf of assured up to and including May, 1917; that at the time of Albert F. Steen's death he was a member in good standing in appellee.

To the declaration appellee filed a plea of general issue and a special plea. The special plea averred the issuance of a certificate to assured; that appellee is a fraternal beneficiary society; that it makes provisions for payment of death benefits in case of the death of members in good standing; that the contract in question consists of the application, the by-laws, and the benefit certificate; that at the time the assured made his written application for membership he contracted ‘to conform in all respects to the laws, rules and usages of the order now in force or which may hereafter be enacted and adopted by same, and that this application and the laws of this order shall form the sole basis of my admission to membership therein and of the benefit certificate to be issued me by said Modern Woodmen of America’; that in said application he was asked the following question and made the following answer:

‘7. Do you further understand that the laws of this order now in force or hereafter enacted enter into and become a part of every contract of indemnity by and between the members and the order and govern all rights thereunder? Answer: Yes.’

-that the by-laws in force when the benefit certificate was issued were subsequently amended and modified, and from and after September 1, 1908, to the present time said by-laws have provided, among other things, in substance as follows:

‘Sec. 64. Action on Certificates Must be Brought Within Eighteen Months.-No action for recovery on a death claim based upon any benefit certificate heretofore or hereafter issued by this society can or shall be maintained until after the proofs of death and claimant's rights to benefits, as provided in these by-laws, shall have been filed with the head clerk and passed upon by the board of directors, nor unless brought within eighteen months from the date of death of the member. * * *

‘Sec. 66. Disappearance No Presumption of Death.-No lapse of time or absence or disappearance on the part of any member heretofore or hereafter admitted into the society, without proof of the actual death of such member while in good standing in the society, shall entitle his beneficiary to recover the amount of his benefit certificate, except as hereinafter provided. The disappearance or long-continued absence of any member unheard of shall not be regarded as evidence of death or give any right to recover on any benefit certificate heretofore or hereafter issued by the society until the full term of the member's expectancy of life according to the National Fraternal Congress Table of Mortality has expired within the life of the benefit certificate in question, and this law shall be in full force and effect, any statute of any state or country or rule of common law of any state or country to the contrary notwithstanding. The term ‘within the life of the benefit certificate,’ as here used, means that the benefit certificate has not lapsed or been forfeited and that all payments required by the by-laws of the society have been made.'

The special plea of appellee further averred that proof of the actual death of Albert F. Steen has never been furnished to appellee, and that the expectancy of life of Albert F. Steen according to the National Fraternal Congress Table of Mortality has not expired. To this special plea appellant filed a general demurrer, which was overruled. She elected to stand by her demurrer, and the superior court entered judgment in favor of appellee, which judgment was on appeal affirmed by the Appellate Court for the First District. That court granted a certificate of importance, and this further appeal has been prosecuted.

The only question presented by this appeal is the validity of section 66 of appellee's by-laws. Appellant contends that this by-law is void because its meaning is uncertain, it is unreasonable, and it is against the public policy and established law of the state. An able and exhaustive brief has been filed by learned counsel for appellant urging their views on these points, and we give attention to the points in the order stated.

[1] Counsel argue, first, that this by-law is uncertain, unintelligible, and so incomplete as to make it incapable of enforcement without a further provision in the by-law, contending that the by-law fixes no date or age of the assured at which his expectancy of life shall begin to run. Unless it can be determined from the by-law at what age the member's life expectancy is to be calculated, it must be declared void, for the length or duration of such expectancy must be determined by the age of the member at the time fixed by the by-law to begin, for it is a matter of common knowledge that the expectancy of life of a person varies with every succeeding year of life. It is important that the beneficiary shall in some way be able to tell how many years she will be required to pay dues after the disappearance of the member, so that she may determine the wisdom of keeping the certificate alive or of letting it lapse. We think it clear from a consideration of the by-law and the apparent purpose for which it was passed that the age fixed at which the expectancy of life is to begin to run is the time of disappearance. The object of the by-law is to establish a rule of evidence in disappearance cases different from the 7 years' absence rule established by the common law. The rule of evidence sought to be established is that, when a member disappears and nothing is heard from him, he is presumed to live out his natural expectancy, and at the end of his natural expectancy he will be presumed to be dead, but not until that time has arrived. This natural expectancy is to be determined according to the National Fraternal Congress Table of Mortality, a table recognized by the insurance departments and the courts of practically every state in the union. The by-law has but one purpose and refers to but one time. The time to which it refers is the date of the disappearance of the member, and under the by-law the member's expectancy of life must determined from the age of the member on the date of his disappearance.

[2][3] It is further contended that the word ‘actual,’ used in connection with the word ‘death,’ adds nothing to the meaning of the latter word, and reliance is placed upon the language in Gaffney v. Royal Neighbors, 31 Idaho, 549, 174 Pac. 1014, where the court, in passing on a by-law identical with the one now under consideration, said:

‘We are at a loss to determine what added force is given to the language by use of the word ‘actual’ in connection with the word ‘death.’ Every death is an actual death, and there is no such thing as constructive or presumptive death.'

Much of the argument is based upon the theory that this by-law excludes proof of death by circumstantial evidence. We do not think the by-law subject to this construction. The law is well settled in this state that death may be proven by circumstantial evidence, and we do not consider that the by-law attacks in any way that established principle. We think, however, there is a clear distinction between actual death and death presumed by 7 years' continued and unexplained absence. The word ‘actual’ has well-understood meaning. It is something real or actually existing as opposed to something merely possible. Actual death is death existing in fact as distinguished from a constructive or speculative death established by a rule of evidence brought into being by necessity. If a man is actually dead-that is, dead in fact-he has reached a permanent state so far as worldly affairs are concerned, and his business can be settled accordingly. On the other hand, if his death is determined under the...