Moses v. Illinois Commercial Men's Ass'n

Mr. Justice Smith delivered the opinion of the court. Appellant’s pleas presented the issue as to whether or not the deceased, Walter Moses, committed suicide. On that issue the testimony of Matilda Moses was material and was properly admitted. The court excluded the amendment to article VII, sec. 8, of appellant’s by-laws, adopted June 26, 1909. This ruling is assigned for error. By the terms of the policy and the application therefor, each and all of the provisions of the by-laws of appellant then in force, and all the provisions of any and all amendments, alterations and new issues of the by-laws subsequently adopted, became a part of the contract of insurance, and Walter Moses, the deceased, and any and all beneficiaries thereunder were bound by such amendments, if reasonable and valid, as fully as if the same were recited at length over the signatures to the application and policy. Supreme Lodge K. of P. v. Kutscher, 179 Ill. 340; Same v. Trebbe, 179 Ill. 348; Clarke v. Illinois Commercial Men’s Association, 180 Ill. App. 300. No objection was made to the proof offered as to the adoption of the amendment of June 26,1909. The question then is as to the reasonableness of the amendment, for it was regularly adopted, and, if reasonable, must be considered as a part of the contract of insurance. The material part of the amendment is the following: “Nor shall this association be liable to any person on account of the disability or death of any member resulting from the discharge of firearms when there is no witness to the discharge of such firearms except the member himself.” The remainder of the amendment relates to the burden of proof in establishing the.presence of an eyewitness, and simply expresses the rule of law applicable to proof of the fact. It adds nothing to the effect of the part above quoted, for the burden of proof in this State, as elsewhere, rests with the plaintiff to establish that the assured met an accidental death under conditions imposing liability expressed in the terms of the contract of insurance, notwithstanding the pleas of the defendant of the general issue, setting up suicide, and the evidence in support thereof. Fidelity & Casualty Co. of New York v. Weise, 182 Ill. 496. It was indispensable under the first part of the by-law for the plaintiff to prove an accidental death resulting from the discharge of the firearm and that there was an eyewitness to the discharge other than the assured. This was a condition precedent to the creation of a liability under the first part of the amendment of the by-law, even if the amendment had not specifically so provided. It follows, therefore, that the amendment does not establish a new rule of evidence and is not obnoxious to that objection. In Roeh v. Business Men’s Protective Ass’n. of Des Moines, 145 N. W. Rep. 479, the same provision in legal effect of a by-law was before the Supreme Court of Iowa on the same objections to its validity urged to this by-law, namely, that it was contrary to public policy, because it undertook to make a rule of evidence and interfered with orderly procedure in courts of justice. The by-law was upheld by that court and recovery was denied. In speaking of the objects or purposes of the by-law that Court said it was clear. “It was to remove the presumption of accident arising from death as a result of a gunshot wound, and to require eyewitnesses of the event in order to establish liability on the part of the insurer. Not only is the beneficiary to prove the operating cause of death, as that it ‘was from a gunshot wound, but he must prove by eyewitnesses of the event that the gun was accidentally discharged. It is not enough that he prove that it might have been so committed. His proof must be stronger than that, and fairly preponderate in favor of the proposition that the gun was accidentally discharged.” As pointed out in the Roeh case, sufra, contracts relating to procedure have been repeatedly sustained, such as a provision in an insurance policy limiting the time in which an action may be brought on the policy different from the statute of limitations, Peoria Marine & Fire Ins. Co. v. Whitehill, 25 Ill. 466, and Riddlesvarger v. Hartford Ins. Co., 7 Wall. (U. S.) 386; a provision with reference to a requirement for furnishing written proofs of loss (Kelly v. Supreme Council Cath. Mut. Ben. Ass’n., 46 App. Div. (N. Y.) 79); a provision waiving a jury trial. (Columbia Bank v. Okely, 4 Wheat. (U. S.) 235). We have reached the conclusion that the amendment of the by-laws adopted June 26, 1909, was reasonable, not against public policy, and was valid, and constituted a part of the contract sued on. As such, it was material and the court erred in excluding it. If the amendment was a good and valid provision of the by-laws, the plaintiff failed to make out a case under the policy. The judgment of the trial court is reversed and the cause is remanded. Reversed and remanded.