Mannheimer v. Independent Order Ahawas Israel

Guy, J. The plaintiff herein appeals from an order setting aside the verdict of a jury in an action brought to recover a death benefit of $500, payable to the designated beneficiary upon the death of a member in good standing, the beneficiary in this instance being the widow of a member alleged to be dead. The evidence shows that the plaintiff’s husband, the assured, had been living on good terms with plaintiff and their child for several years; that he was steadily employed; that the day before his alleged disappearance he brought his wages home and gave them to his wife; that he had money in bank, which was not withdrawn by him; that he left all of his personal effects in his home; that on the morning of the alleged disappearance, November 15, 1903, he left his home at the usual hour, kissing his wife good-bye, and from that time has not been seen or heard from, notwithstanding most exhaustive and persistent efforts to discover him, made by various of his relatives. The evidence further shows that about two weeks after his disappearance plaintiff notified the secretary of Daniel Lodge, the subordinate lodge of the defendant order to which the alleged decedent belonged, of the fact of his disappearance, and that said secretary, designated by the by-laws as the officer to whom notice of death should be given, then stated to her: “All right, there could be nothing done until after seven years, until they found out he was really missing;” that thereafter, in order to preserve the good standing of her husband, so that her rights to said benefit might not be forfeited, plaintiff continued paying benefit assessments to said order until the said term of seven years had elapsed. It is conceded that there is no record of the death of the assured in the board of health in this city. About December 15, 1912, plaintiff filed with the secretary of — 457 — the defendant order proof of death of her husband, in the form of affidavits setting forth the facts as to his disappearance and the efforts that had been made to discover his whereabouts, as above stated. A copy of the constitution of the defendant order was offered in evidence by plaintiff. Defendant moved to dismiss the complaint on the ground of failure to comply with the provisions of the constitution as to proof of death. This motion was denied. Defendant introduced no evidence. The case was submitted to the jury, which rendered a verdict in favor of plaintiff. Defendant then moved to set aside the verdict on the ground that there was no proof of death in accordance with the constitution of the defendant order, which (at p. 27 thereof) provides: “It shall be the duty of any person who claims a death benefit to immediately, upon the decease of a member in good standing, notify the Secretary of the Lodge of which the deceased was a member of the death of such member, and file with the Secretary of such subordinate Lodge a copy of the record of death issued by the Board of Health or other proper officer keeping the records of death of the city where said member died. The secretary of such subordinate Lodge shall forthwith transmit said record of death to the Grand Secretary, who, after the report of the Endowment Committee to the Executive Committee, and the approval of the Executive Committee of the claim, shall notify all lodges of the Order of such death and request the payment by the Lodges of the prescribed assessments. “After approval by the Endowment Committee of a claim for death benefit, there shall be paid to the person or persons legally entitled thereto, within the time and in the manner hereinafter described, the amount of endowment provided for by this Constitution.” — 458 — Briefs were submitted, and subsequently the court granted the motion setting aside the verdict ‘‘ under the authority of Kelly v. Supreme Council, 46 App. Div. 79.” An examination of the case cited by the learned trial judge discloses a radical difference between that case and the case at bar, in that in the case cited it was provided by a by-law of defendant supreme council ‘ ‘ that no time of absence or disappearance on the part of a member, without proof of actual death, shall entitle his beneficiary to recover upon his membership certificate.” In that case the parties entered into the contract of membership and insurance having in contemplation the possibility of disappearance without actual proof of death, and providing specifically that no benefit rights should accrue in that event. In the case at bar there is no such provision barring any claim based upon disappearance or that actual proof of death shall be a condition precedent to recovery. The provisions as to method of proof are merely directory, both as to the beneficiary and the members of the subordinate and grand lodges. They establish a method of procedure which shall be followed upon the death of a member in good standing. The constitution provides that upon the death of a member in good standing the beneficiary shall be entitled to a benefit of $500. The method of proof of death and the procedure which shall follow upon the filing of such proof is but a declaration as to what course shall be followed under ordinary circumstances. The record proof is, where obtainable, to be regarded as the best evidence of death, which must be filed if such proof exists; but where, in the nature of things, such evidence cannot be obtained, then the power rests in a court of justice to accept such secondary proof as will establish the fact of death under rules of law recog — 459 — nized by judicial tribunals. The method of procedure prescribed by the constitution of the defendant order directs that several steps shall be taken in connection with the presentation, examination, approval and payment of a claim: First, immediate notification to the secretary of the subordinate lodge and filing with said secretary a copy of the record of death of the member kept by the board of health, or similar body, of the city in which the death occurs. Second, the forwarding of said record and notice by the secretary of the subordinate lodge to the grand secretary of the grand lodge. Third, the report of the endowment committee to the executive committee of the grand lodge. Fourth, the approval of the claim by the executive committee of the grand lodge. It could not be seriously contended that the failure by officers of the subordinate lodge or grand lodge to comply with any or all of these separate details of procedure could defeat the rights of the beneficiary which accrued upon the death of a member in good standing, though they are all essential parts of the method of procedure prescribed by the constitution, to be followed upon the death of a member. Nor could it be maintained that if there were actual proof of death occurring in a place where no public record of deaths were kept, or where such records were kept but had subsequently been destroyed by fire or otherwise, that the failure to produce a copy of the record would defeat the beneficiary’s claim. In such event the law would not require the doing of a thing which is in its very nature impossible, unless the doing of such thing was of the essence of the contract and a condition precedent to the accruing of any rights thereunder. ‘‘ Such conditions in a policy of insurance must be considered as inserted for some reasonable and practical purpose, and not with a view of defeat — 460 — ing a recovery in case of loss by requiring the parties interested to do something manifestly impossible.” Trippe v. Provident F. Soc., 140 N. Y. 23-26. See, also, Sergent v. Liverpool & L. & G. Ins. Co., 155 N. Y. 349. There are two things that are of the essence of this contract of membership and insurance. First, good standing of the member at the time of his death. Second, competent proof of death. The main question presented upon this appeal is whether plaintiff filed with the defendant order competent proof of death. Where actual, direct proof of death cannot be obtained, the fact of death may be proved presumptively as well as by direct evidence. See Greenl. Ev., § 41. Continued absence from one’s last and usual residence may, under certain conditions, raise a presumption of death. Sheldon v. Ferris, 45 Barb. 124; Ferry v. Sampson, 112 N. Y. 415; Cambrelleng v. Purton, 125 id. 611. “He may leave under circumstances which will satisfy the court that he must be dead or lie would have returned or reported.” Matter of Smith, 77 Misc. Rep. 76. The refusal by the defendant to pay the benefit to the beneficiary under such circumstances as are presented in this case furnishes a sad commentary on the supposed benevolence of some orders of this character. Morally, equitably, legally, plaintiff is entitled to recover. It might also be urged with some force that, even were actual proof of death to be deemed a condition precedent to payment of death benefit under the bylaws of the order, the defendant, after notice to its designated agent of the member’s disappearance, by receiving premiums from plaintiff for the full period of seven years, after statement by its agent that it would be necessary to wait seven years to establish the — 461 — fact that the member was missing, must be deemed, under all the circumstances of the case, to have waived actual proof of death. The order setting aside the verdict of the jury herein must, therefore, be reversed, with costs, the verdict reinstated and judgment directed in favor of plaintiff in accordance therewith.