(concurring specially). This is' an action upon an accident insurance contract. The complaint alleges:
“(i) That he (Weber) is the duly appointed, qualified, and acting guardian of the estates of Fred Bodman, Estelle Bodman, Esther Bod-man, Maxine Bodman and Myron Bodman, who are the infant children of Fred J. Bodman, deceased.
“(2) That during the lifetime of the said Fred J. Bodman-he was the holder of a policy issued by the defendant which is an accident insurance corporation, in which said policy the said defendant did insure the said Fred J. Bodman against injury or death by violent, external, and accidental means, and that said policy was fully paid up and in full force and effect upon the 12th day of May, 1919.
“(3) That the wards of the plaintiff hereinbefore named are the beneficiaries named in the said policy, and are entitled to the full benefit of all the provisions thereof.
“(4) That on the said 12th day of May, 1919, the said Fred J. Bodmart came to his death by external, violent; and accidental means, to wit, by being run over and decapitated by a railroad train. ■
“(5) That the amount payable under the terms of fhe said policy in case of accidental death of the said Fred J. Bodman is the sum of $5,000.
“(6) That no part of the same has been paid to the wards of plaintiffs, nor to any qne authorized to receive the same in their behalf.”
The defendant in its answer admitted the allegations of paragraphs 1, 2, 3, 5, and 6 of thp complaint The answer also contained the following allegation:
“Further answering, it alleges that the death of the said Fred J. Bod-man was not caused by external, violent, and accidental means, but was caused by the willful and premeditated self-destruction of the said deceased with suicidal intent and was due wholly to his own acts, and not. ■to the acts of any other person or agency.”
The action was tried to a jury upon the issues framed by these pleadings. The jury returned a verdict in favor of the plaintiff. The defendant moved for a new trial on the grounds: That the verdict is contrary to the evidence; that the verdict is contrary to the court’s instructions ; that the court erred in giving, and in refusing to give, certain instructions to the jury. The motion for a new trial was denied, and the *319defendant has appealed to this court from the judgment and from the order denying a new trial. While the defendant specified, in the language of the statute, as grounds for a new trial, that the verdict was contrary to the evidence and contrary to the court’s instructions, these grounds were apparently abandoned, and the only question presented on this appeal is whether the trial court erred in giving and in refusing to give certain instructions. The instructions given and refused upon which error is predicated .relate to the question whether the deceased was sane or insane at the time of his death. The trial court instructed the jury thus:
“If you find that he was impelled to the act of self-destruction by an insane impulse which the reason that was left in him did not enable him to resist, or if his reasoning powers were so far overcome by his mental condition that he could not exercise his reasoning faculties on the act which he was about to do, the company is liable.”
The defendant requested that the jury be instructed that by the terms of the insurance contract—
“The defendant insurance company does not assume any liability for death resulting from accident occasioned by mental infirmity or insanity, * * * and that therefore in this case, if you should find that the deceased, Fred Bodman, came to his death by his own act of self-destruction, even if you should also find that his act in taking his own life was due to disease or mental or bodily infirmity or insanity or fits, yet there could be no recovery in this case by the plaintiff, and that because of the terms of the insurance contract.”
The trial court refused to give this instruction.
It will be noted that the requested instruction refers to, and purports to be based upon, certain provisions of the insurance contract involved in this suit. The defendant does not challenge the correctness of' the rule announced in the instruction given by the trial court, considered as an .abstract proposition. On the contrary, it admits on this appeal that the authorities sustain the rule that death from suicide is caused by accidental means within the meaning of a policy of insurance against bodily injuries from “external, violent, and accidental means,” if the insured was at the time of the act so insane that he did not understand the nature of the act or that death would result therefrom. But appellant contends that this rule is not applicable in this case for the reason that the policy here involved contained a provision that “the accident department of the asso*320ciation does not assume any liability * * * if the occasion of the accident be * * * insanity.” Hence, in considering appellant’s specifications of error, the first pertinent question to determine is whether its premise is correct, viz. whether the insurance contract in suit contains the provision defendant asserts that it contains..
It will be noted that the complaint did not purport to set out the policy or the terms and conditions thereof. The complaint merely averred that the' deceased was the holder of an accident policy issued by the defendant whereby he was insured “against injury or death by violent, external, and accidental means.” The only issue tendered by the answer was as to the character of the death. The answer alleged affirmatively “that the death was not caused by external, violent, and accidental means, but was caused by the willful and premeditated self-destruction of the said deceased with suicidal intent and was due wholly to his own acts and not to the acts of any other person or agency.” There was not even an intimation in the answer that the policy contained a provision relieving the defendant from liability from accidents occasioned by insanity. But the defendant contends that, regardless of the issues framed by the pleadings, the defendant became entitled to the benefit of the provision in the policy and to have appropriate instructions given as regards thereto by reason of the evidence admitted upon the trial of the case.
Let us see how well this contention is founded. At the commencement of the trial the parties entered into the following stipulation:
“It is stipulated by and between the plaintiff and the defendant that the following facts are conceded by both sides upon the trial of this action.
“I. That Fred Bodman, Estelle Bodman, Esther Bodman, Maxine Bodman, and Myron Bodman are the infant children of Fred J. Bodman, deceased, and that Andrew Weber, the plaintiff in this action, is the duly appointed, qualified and acting guardian of their estates.
“II. That the defendant, the Interstate Business Melt’s Accident Asso ■ ciation of Des Moines, Iowa, is a corporation engaged in the business of insurance against accident, and that during the lifetime of Fred J. Bod-man the defendant issued a policy, in which policy it insured the said Fred J. Bodman against injury or death by violent, external, and accidental means, and that said policy was fully paid up and in full force and effect on the 12th day of May 1919.
“III. That the wards of the plaintiff, hereinbefore named, are the *321beneficiaries named in the said policy, and are entitled to the full benefit of all of the benefits thereof.
“IV. That the amount payable under the terms of the said policy in case of accidental death of the said Fred J. Bodman is the sum of $5,000.
. “V. That no part of the same has been paid to the wards of the plaintiff, nor to any one authorized to receive the same in their behalf.”
■ In presenting his case in chief the plaintiff, in addition to the foregoing stipulation, offered the testimony of only one witness, who testified to the fact that the insured, Fred Bodman, came to his death on May 12, 1919, by being run over by a railroad train at Ashley in this state. No reference was made to the mental condition of the deceased. The first evidence adduced by the defendant consisted of certain testimony tending to lay a foundation for the introduction in evidence of the policy of insurance. The policy sought to be and eventually admitted in evidence did not purport to be the original one issued to the deceased, but purported to be merely a copy. Defendant’s counsel spent much time and adduced considerable testimony for the purpose of laying a foundation for the admission of the copy in lieu of the original, and there was ■and is the gravest doubt if in fact a sufficient foundation was laid to justify the admission of the copy. At all events the question which must have been uppermost in the mind of the trial judge at the time was whether a sufficient foundation had been laid to admit the proffered exhibit at all. The face of the policy received in evidence was as follows:
“Number 66707. Not Exceeding $5,000.00.
“Certificate of Membership.
“Interstate Business Men’s Accident Association of Des Moines, Iowa.
“This certifies that Fred J. Bodman is a member of the Interstate Business Men’s Accident Association, and is entitled to such benefits as may be provided in and by the articles of incorporation and by-laws of said association in force and effect at the time the accident occurs from which a claim for benefits arises, and by the acceptance of this certificate he agrees to the several provisions and conditions of the said articles of incorporation and by-laws as from time to time they may be amended or changed.
“In witness whereof the said Interstate Business Men’s Accident Association at its home office in Des Moines, Iowa, has caused this certificate *322to be signed by its president and secretary, and its corporate seal to be hereunto affixed this nth dayof December, A. D. 1913.
“Ernest M. Brown,
“Secy. & Treas.
“G. S. Gilbertson,
“President.
“C. P. W. Registered.”
On the back of the certificate is the following heading in large type, viz.:
“The following is a synopsis of the provisions of the articles of incorporation and by-laws now in force and effect. The right of any member to claim benefits or indemnity will be determined by the provisions of the articles of incorporation and the by-laws in force at the 'time the accident happens out of which any claim arises.”
Immediately following this heading is what purports to be a synopsis of the provisions of the articles of incorporation and by-laws in force at the time the certificate was issued. Among other things stated therein is the following:
“The accident department of the association does not assume any liability * * * if the occasion of the accident be * * * insanity.”
Immediately following the synopsis of the articles of incorporation and by-laws, at the bottom of the page, is the following, also, printed in large type:
“A printed copy of the articles of incorporation and of the by-laws is inclosed with this certificate. The member should read the same carefully and inform himself of the rights and duties of membership. This duty you owe to yourself and the association.”
The certificate of insurance also contains a copy of the application. The original application was also offered in evidence. In the application no reference is made to the fact that the association is not liable “if the occasion of the accident be * * * suicide.” In fact, no reference is made to the question of limitation of liability. The application, however, contains this declaration on the'part of the applicant:
“I hereby agree that I will accept the certificate of membership which may be issued to me subject to all the provisions, conditions, and limitations contained in the articles of incorporation and by-laws of said association, as the same now are or as they may be legally amended or changed, and I agree to comply with all the provisions thereof.”
*323It will be noted that the certificate of membership states that the assured—
“is entitled to such benefits as may be provided in and by the articles of .incorporation and by-laws of said association in force and effect at the time the accident occurs from which a claim for benefits arises.”
These statements speak for themselves. The certificate of membership by its express terms did not purport to be the whole contract. It specifically referred to the articles of incorporation and the by-laws as establishing the essential elements of the contract. When the contest was raging, during the trial of the cause, as to whether the certificate should be admitted, the trial judge by a mere inspection of the certificate was advised that the benefits conferred upon the assured were those provided in the articles of incorporation and by-laws of the association in effect at the time the accident occurred. This necessarily inferred that whatever limitations there were as to liability were also specified in such articles and by-laws. It was necessary that the certificate of membership be introduced as a foundation for the admission of the articles of incorporation and by-laws. But there is no good reason why the trial court should have believed that the defendant, when it offered the certificate in evidence also, thereby sought to prove the contents of the articles of incorporation and by-laws. Manifestly the articles of incorporation must have been a matter of public record in the state where the association was incorporated; and it is a matter of common knowledge that the by-laws of a corporation are generally entered in some appropriate record of the corporation. Not only is it presumed that the ordinary course of business has been followed, but the very “synopsis” which defendant asserts constitutes evidence of the articles of incorporation and by-laws shows that it is not a copy thereof, but is merely a statement of conclusions as to the contents and effect of the articles and by-laws. It also shows that the articles of incorporation and by-laws are not contained in or in any manner made part of the certificate of insurance, but are extraneous thereto and were set forth in some other document inclosed therewith. It was deemed necessary to conclude the so-called “synopsis” by stating in large type that “the member should read the inclosed copy of the articles of incorporation and of the by-laws carefully and inform himself of the rights and duties of membership” in the association. This was urged upon him as a duty which he owed to himself and to the association. Of course, if the “synopsis” had been a copy or even a complete statement of *324the contents of the’ articles of incorporation and of the by-laws, this statement and caution would hardly have been necessary.
In the circumstances, how can it be said that the trial court erred in not considering the articles of incorporation and the by-laws of the. defendant corporation in the instructions to the jury? How can it be said that the trial court in admitting the certificate of insurance must, for the purposes of the submission of the case to the jury, be deemed to have admitted the certificate, among others, for the purpose of proving the articles of incorporation and the by-laws ? There is nothing obscure about the rules of evidence relating to the mode of proving the contents of the articles of incorporation and the by-laws of a corporation. Aside from the applicable statutory provisions, the various legal treatises deal fully with the subject. See 3 Ency. Evidence, 657; Jones’ Commentaries on Evidence. §§ 200a, 522; Bacon, Life & Accident Insurance (4th ed.) § 103; Fletcher’s Ency. of Corporations, § 488. See, also, §§ 7909, 7919, subd. 7, C. L. 1913.
In the case at bar the defendant was permitted to introduce the certificate of insurance in evidence. This constituted an essential foundation for the introduction of proof as to the contents of the articles of incorporation and of the by-laws. Whether defendant had or desired to present such proof was a matter for it to determine. It failed to present such proof. As the trial court said in a memorandum opinion filed with the order denying a new trial in this case:,
“As the matter now stands, there is no proof of the existence or contents of the by-laws.”
This, in my opinion, correctly states the condition as it existed at the time when the trial court instructed the jury; and, of course, the instructions given were properly limited to the issues raised by the pleadings and the proof. As already stated under the pleadings, only one issue was preserved, namely, whether the death of the insured was occasioned by accidental means, or whether such death was occasioned by “the willful and premeditated self-destruction of the said deceased with suicidal intent.” Lpon this issue the court had before it the policy of 'insurance, which specifically referred to the articles of incorporation and the by-laws of the corporation for the other elements of the contract. No attempt was made to prove the contents of such articles or by-laws. There was, however, not only the admission in the defendant’s answer, but the stipulation made at the commencement of the trial that “during the lifetime of Fred *325J. Bodman, the defendant issued a policy-in which policy it insured the said Fred J. Bodman against injury or death by violent, external, and accidental means.” So, leaving wholly on one side the question of the sufficiency of defendant’s pleading to raise the issue of its limited liability, it seems clear to me that the trial court committed no error in giving the instruction which it gave and in refusing to give the instruction which defendant requested. The instruction which it gave is concededly correct in the absence of evidence on the part of the defendant showing that its liability was limited by virtue of provisions in its articles of incorporation or by-laws. The instruction which defendant requested purported to be based upon, and asked that there be submitted to the jury for consideration, provisions of the by-laws of the defendant corporation which were not in evidence. In other words, the trial court did what the law required it to do — instructed upon the issues which were properly raised by the pleadings and the proof, and refused to instruct with respect to matters for which there was no basis either in the pleadings or in the proof.
I concur in an affirmance of the judgment and the order appealed from. My reasons for doing so are those set forth above. I express no opinion upon any question except those discussed by me in this opinion.
Bronson and Birdzell, JJ., concur.