Some of the courts seem inclined to attribute complicity on the part of the insured, where the answers in the application were different from the facts stated by him. Globe Reserve Co. vs. Duffy, 76 Md. 293. Pottsville Co. vs. Fromm, 100 Pa. 347. But, on the other hand, it has been held that the applicant does not warrant that the examiner will correctly set down his answers: Equitable Life vs. Hazelwood, 75 Tex. 338. So much, then, for the cases on the subject. It is not my purpose to rail against some of them, or pronounce a benediction as to others. In the main, they demonstrate that courts are strongly inclined to favor the beneficiary. It should, therefore, behoove fraternal societies. to give more attention to the selection of medical examiners and less to fine print. The effort expended in devising ways to avoid responsibility for the examining physician's acts, if devoted to careful selection of such medical examiners in the first place, would doubtless, in large measure, neutralize the legal consequences which follow their appointment. FORFEITURE OF THE CONTRACT BY REASON OF THE DEATH OF OF A CRIME AGAINST THE STATE. By EDMUND S. CUMMINGS, Legal Adviser, Catholic Order of Foresters. Read before Law Section, Aug. 18, 1914, Niagara Falls, N. Y. Most fraternal societies in common with the by-law which avoids liability on the benefit certificate in case of the death of the member by suicide that a by-law or a condition inserted in the benefit certificate itself by which liability of the society on the benefit certificate, is avoided if the member shall die at the hands of justice, or while in the custody of the law, or while in the act of committing a crime against the state, or as the result of, or in consequence of, having committed such crime. An examination of the cases bearing upon this question shows that the societies have suffered by adverse judgments of the courts where questions involving by-laws of this character have been involved as they have so frequently suffered where questions relating to the death of the member by suicide have been involved. In fairness to the courts, however, it must be conceded that many of these adverse decisions turn upon the true meaning of the language of the by-laws and doubtful and uncertain meaning of the language of the by-laws must be interpreted favorable to the member and against the society. We have profited by decisions of the court relating to questions of suicide so that now with the broad language of by-laws to the effect that death by suicide avoids the policy, whether the member be sane or insane and whether the act of suicide is voluntary of involuntary, we have little difficulty in maintaining a defense to an action. which involves the question of the suicide of the member. When language is used in the by-laws of the character of the subject of this paper, such as "while in the act of violating the law," if death shall occur while in the act of violating the law, courts are not to be criticised holding that death must have occurred while the crime was being actually committed and not thereafter, even though death was in consequence of the crime. So, too, when the language employed is that the certificate shall be avoided if the member shall die in consequence of a "known violation of the law," it is not surprising that courts should disagree as to whether or not it must be shown that the assured actually knew that he was violating the law before the defense under the by-law should prevail. SCOPE OF THE MEANING OF THE BY-LAW. In Harper vs. Insurance Company, 19 Mo. 506, the court held that the character of the crime covered by the by-law in that case should be limited to acts of felony, basing its conclusion upon the interpreted meaning of the clause when construed in connection with other clauses of the by-laws. But in Brown vs. Supreme Lodge, Knights of Pythias, 83 Mo. App. 633, the court held that the meaning of a by-law of the character under consideration should not be confined to a case where a member loses his life in the commission of a felony, nor should it be applied where he suffers death by reason of a misdemeanor in the fullest sense of that word, but it should be construed to embrace any act of the insured which might be denominated a crime, and if his offense was of that character, whether it was a felony or not, and he lost his life in consequence of it and under circumstances which made the killing justifiable homicide, then a forfeiture ought to be declared. In Cluff vs. Mutual Benefit Life Insurance Co., 99 Mass. 318, the court held that the by-law must be construed to refer to a voluntary criminal act on the part of the insured known by him at the time to be a crime against the law of the state and not to mere trespasses against property nor the infringement of civil laws to which no consequence are attached. The court further said that the phrase "known violation of law" covered a voluntary criminal act only and not violations of the civil law. In Bloom vs. Franklin Life Insurance Co., 97 Ind. 478, the policy provided that it should be forfeited in case the assured should die while engaged in the known violation of law, and it was held that it was immaterial whether the death resulted from a violation of a criminal law or of a positive rule of the civil law, provided the viola tion of law was such as increased the risk and naturally led to the death. If the natural and reasonable consequence of the act does not increase the risk, then the policy is not avoided whether the law violated is a civil or a criminal one. Question: Whether the violation of the law was the proximate cause of the death and whether it was an act increasing the risk must be the fact of each particular case. KNOWLEDGE OF CRIMINAL LAW PRESUMED. In Cluff vs. Mutual Life Insurance Co., 99 Mass. 217, it was held everyone is presumed to have knowledge of the criminal laws of the state. In Bloom vs. Franklin, 97 Ind. 478, where the by-law covered the death of a member as a result of "known" violation of the law by him, it was said that the violation must be a known one and we are inclined to think that the law violated must be a known one; that is, must be one that the violator has, or should have, actual knowledge, but there are many things of which no man can be ignorant, and among the things of which no one can be ignorant is that it is against the law to murder, to steal, or to violently beat another. Violation of the Law Must be the Proximate Cause of the Death. In Bradley vs. Mutual Benefit Life Insurance Co., 45 N. Y., 422, the court held that there must be a clear relation between the violation of the law and the death and that liability could not be avoided. by the mere fact that at the time of the death of the assured he was violating the law if the death occurred from some cause other than such violation, and in Bloom vs. Franklin, 97 Ind. 478, the court said, a man engaged in uttering counterfeit money might meet his death while so engaged, and yet there might be no casual connection in his death and the uttering of counterfeit money, while another man might meet his death while attempting to force an entrance into another man's house with the purpose of arresting him on a civil process. In the first instance the policy would not be avoided and in the second it would be. In Jones vs. United States Mutual Accident Assn. (Ia.) 61 N. W. 458, the policy of insurance contained a provision that the insurance. should not extend to injuries received in consequence of violating the law. The court held that it was necessary to show that the violation of the law had a causative connection with the injury. If the injury had been caused or produced by something else than the insured's violation of the law, then the latter cannot be said to have such a legal relation to the former as to be a legal defense to the action upon the policy. " In Prader vs. National Masonic Accident Assn. (Ia.) 63 N. W. 601, the provision of the accident insurance policy was to the effect that it should not cover an accident occurring while the insured was violating the law. Insured was injured on Sunday after he had returned from a hunting trip-hunting on Sunday being a violation of the law. It was held that the by-law did not apply and liability existed on the policy. What constitutes a violation of the law is a question of law for the court. In Woodmen of the World vs. Purdom, 147 Ky. 177, the court held the abstract proposition whether or not insured was violating a law when he met his death should not be submitted to the jury. Such an instruction would leave to the jury to decide what was a violation of law without giving any guide to go by. The court should always tell the jury what constitutes a violation of law. BURDEN OF PROOF ON DEFENDANT. The burden of proof that the assured died in violation, or attempted violation, of the law is upon the defendant's society. Woodmen of the World vs. McCosslin (Tex.), 126 S. W. 894. INTENTION TO VIOLATE THE LAW NOT SUFFICIENT. In Pythian Knights, Supreme Lodge vs. Beck, 181 U. S. 49, the by-law of the society was to the effect that if death should be caused or superinduced by a violation or attempt to violate any criminal law, then the sum to be paid should be a greatly reduced sum, etc. The court, through Mr. Justice Brewer, in construing the by-law held that the effect of it was to restrict the forfeiture of liability to actual violation of the law by the insured at the time of his death; that if he contemplated a violation of the law, but was not in the act of violating the law at the time he was killed, there would be no release from liability. |