The contention that the jury was not warranted upon the evidence in finding that the member committed suicide cannot be sustained, for the reasons stated in the prevailing opinion wherein the facts are set forth. The remaining question is, whether the proposition of law upon which the appellant relies is applicable, namely, that where a case has been submitted to and decided by the jury upon a wholly erroneous theory this court may grant a new trial, although there is no exception taken to such submission.
I do not think, upon the facts here appearing, a case is presented for the application of the rule stated. The answer alleged as a defense that the defendant corporation had passed a by-law under which members who committed suicide caused a forfeiture of the benefits otherwise payable upon their death. The certificate sued upon was introduced in evidence. Among other things it provides, in express terms, that the $1,000 was payable upon the condition that the member complied with “ the laws, rules and regulations now governing this order or that may be hereafter enacted for its government.”
'. Although, after the certificate was issued, the general laws of the order were added to by the adoption of the section referring to suicide, it will be noticed that the contract of insurance was conditioned upon compliance by the member, not only with laws existing when it was made, but with any other laws thereafter enacted for the government of the society. The plaintiff upon the trial acquiesced in this construction of the language of the benefit certificate and consented to the submission to the jury of the question of suicide, and upon the answer to be given to the question thus submitted it was deemed that the respective rights of the parties depended.. The claim now made that this view, adopted by the court and counsel, was erroneous, is not before us for review, for the reason that it was not raised by any exception. The questions, therefore, which the appellant seeks to present as to whether such a *58by-law was a reasonable one; whether, in its terms, it was retroactive, and whether it was binding upon the beneficiaries, we' cannot consider. It follows that the judgment should be affirmed, with costs.
Judgment'reversed and new trial ordered on payment by appellant of costs of trial and of this appeal.