Judgment affirmed, with costs, on opinion of Davie, Referee.
'All concurred, McLennan, P. J., in separate opinion, except Stover, J., who djssented in an opinion.
The following is the opinion of Hon. Caret D. Davie, Referee:
Davie, Referee:
The defendant is a fraternal benefit society, incorporated under the laws of the State of Indiana, having a subordinate branch at Olean, N. Y., known as Olean Court, No. 43.
On the 7th day of April, 1902, the defendant issued to Hattie D. Mauch, the wife of the plaintiff, a beneficiary certificate, whereby it undertook to pay unto the plaintiff, the beneficiary therein named; the sum of $1,300 upon satisfactory proof of the death of the wife.
This contract contained the provision that the same was issued subject to, and to be construed and controlled by, the laws, rules and regulations of the order then'in force or which might thereafter be adopted. At the bottom of the contract is a printed acceptance thereof, signed by Mi’s. Mauch, in the following form : “ I hereby accept this certificate on the conditions named above and agree that my rights and the rights of my beneficiaries shall be governed and controlled by the Laws, Rules and Regulations of the Supreme Tribe of Ben-Hur, now in force or which may hereafter be adopted.”
On the 16th day of October, 1902, Mrs. Mauch died from strangulation occasioned by having hung herself' to a hook in the clothes room adjoining her sleeping apartment. The injury causing her *51death was self-inflicted. At the time of her death and for several weeks prior thereto she was insane. Her self-destruction was not her voluntary, intelligent or rational act, but it was the result of her mental derangement.
Soon after her death proper notice thereof was given the defendant and the requisite proofs of death furnished.
In consequence of the death of Mrs Mauch being self-inflicted, the defendant claims immunity from liability for the principal sum specified in the contract, admitting, however., a liability under its benefit laws to the extent of one-twentieth part of such sum.
The defendant had adopted a constitution and set of rules and regulations for the government of the' order which were in full force at the date of the contract and at the time of the death of Mrs. Mauch.
Section 101 of the benefit laws provides: “No benefit shall be paid on account of the death of a member, which death occurred ■x x x from suicide, whether sane or insane, or whether voluntary or involuntary * * *.
“ (1) If a member commits suicide within one year from the date of his beneficial certificate and while the same is in full force and effect, as shown by fille books of the Supreme Tribe, the amount payable to his beneficiary or beneficiaries shall be one-twentieth of the amount of the certificate held by him at the date of his suicide.”
It was competent for the defendant to limit its liability by the provisions of its beneficiazy contz’act with its members; an express agreement that the defendant should be relieved from all liability to the beneficiazy in case the meznber took his own life, although insane and iz-responsible at the time, would have been valid and binding; the courts have frequently upheld the legality of such a limitation. (De Gogorza v. Knickerbocker Life Ins. Co., 65 N. Y. 232; Bigelow v. Berkshire Life Ins. Co., 93 U. S. 286; Shipman v. Protected Home Circle, 174 N. Y. 398; Travellers’ Ins. Co. v. McConkey, 127 U. S. 661.)
If the provisiozis of section 101 above quoted, to the effect that no benefit shall be paid where death occurred from suicide whether sane or insane, voluntazy or involuntazy, az-e not znodified or controlled by any other provision of the contract, the plaintiff can recover only the one-twentieth part of the sum specified in the cer*52tifickte ; in other, words, if the. contract between Mrs. Mauch and the defendant was to the effect that the defendant should not be liable in ease she became insane and, as a result thereof' took her 'own life, then plaintiff’s, claim cannot he maintained; it, fhefefore, becomes, important to determine precisely wliat the contract was. so far as it relates to the. subject of self-destruction. ‘ Section 95 of the benefit laws of ,th¿. defendant prescribes with great particularity the form of the benefit certificate, the body of the certificate in. contro- ■ versy, being in exact conformity with the requirements of that section ; this section also requires that there be indorsed on the hack of the certificate a table of benefits and monthly payments and also the following statement:
“ Sec.-5. Any member, of the Tribe of Ben-Hur that commits suicide, ipso facto, voids all rights ’ under his beneficial certificate, and ipso facto, forfeits all benefits whatsoever to whitfh his beneficiary or beneficiaries would otherwise have been entitled, under the general laws of the Order, to receive-from the,.Supreme Tribe:, provided always that the executive committee shall pay to the .beneficiary or beneficiaries of the deceased the amount provided herein, such amount being determined by the face value of the certificate or certificates, held by -the member at the time of bis death by suicide considered in proportion to the length of. time he shall have been continuously in good standing in. the Order immediately preceding the date of suicide... ■
■“ (1) If a member commit suicide within one year from the date of his beneficial certificate and.while the same,is in full force and effect, as shown by the boolps of the Supreme Tribe the amount pay-y able to his beneficiary shall be one-twentieth, of the amount of the certificate held by him at the date of his death * * ”
These indorsements being required by section 95 are as much a part of the contract as if contained in the body 'of the contract. The certificate issued to Mrs. Mauch has the following printed indorsement thereon:. . . ;
“ Yotir attention is directed to the following extract from "the laws with relation to suicide : >
“ Suicide.”
Then follow's in full Sec: 5 ” above quoted. The ■ defendant, for the purpose of limiting its liability in casecf the self-destruc*53ti'on of a member, by a specific indorsement on the back of the contract, to which the member’s attention is specifically and pointedly called, and made in conformity with the requirements of section 95 of its benefit laws, says to the member, “ If you commit suicide such act, ipso facto, voids all rights under your benefit certificate.” Ko immunity from liability in case of self-destruction is thereby suggested except in case of suicide. Ko intimation that the certificate should be void if the member became insane, irresponsible and impelled to self-destruction by an uncontrollable insane 'impulse. In such a case death is as much a result of disease as if its proximate cause had been cancer or tuberculosis and is clearly a source of liability unless the plain provisions of the contract exempt defendant therefrom.
The contract between the' defendant and Mrs. Mauch was to the effect that her beneficiary should be entitled to recover the sum of $1,300 upon her death unless she committed suicide, and it should not be held that the effects of this contract are to any extent modified by the ambiguous provisions of section 101.
If Mrs. Mauch committed suicide, the plaintiff cannot recover. If she did not, he is entitled to the full amount of the beneficiary certificate.
Mrs. Mauch did not commit suicide within the legal meaning and significance of such term.
In Shipman v. Protected Home Circle (174 N. Y. 398) Werner, J., says : “ For colloquial purposes the term ‘"suicide’ is at once sufficiently specific and comprehensive to cover all kinds of human self-destruction ; but if the law is to distinguish between the self-destruction of the insane and the self-inflicted death of the sane, insurance contracts must be construed in the light of definitions which express the distinction. Our Penal Code defines suicide as the intentional taking of one’s own life (sec. 172) and the definitions referred to in Weber v. Maccabees (supra)* are to the same effect. Intent is of the essence of the act and this presupposes reason or sanity.”
In Weber v. Supreme Tent of K. of M. (172 N. Y. 492) Parker, Ch. J., says : “ In the eye of the law the taking of life by an insane person, whether it be his own or that of some other person, is not *54an act for which, he 'is responsible. In the Century Dictionary a suicide’■ is defined to be:, 6One who commits suicide; at common law, one who, being of the years of discretion and sound mind, destroys himself. And the act itself is defined to be 6 designedly destroying one’s own life. To constitute suicide at common law the person must be of years of discretion and of sound mind.’ ”
The defendant having contracted for immunity from liability in case tif suicide, and Mrs. Mauch not having committed suicide, the plaintiff is entitled to recover the full amount of the beneficiary certificate, and judgment in his favor against the defendant is accordr ingly directed.
Weber v. Supreme Tent of K. of M. (172 N. Y. 490).— [Rep.