1 Reported in 202 N.W. 341, 204 N.W. 957. On February 20, 1925, the following opinion was filed: Defendant, a fraternal insurance company, appeals from a judgment obtained upon its benefit insurance certificate issued to Ed. F. Mooney, payable to plaintiff, his wife, upon his death.
In his application for a certificate of insurance, Ed. F. Mooney agreed that "any beneficiary certificate based upon this application shall be held to be a contract made in the State of Illinois and subject to its laws." A certificate was issued on March 4, 1899, upon the express condition "that the said Ed. F. Mooney shall comply with the constitution, by-laws, rules and regulations, now in force or which may hereafter be adopted" by defendant. In November, 1908, plaintiff received her last letter from her husband. He then disappeared, and has since not been heard from. Defendant concedes the evidence such as to warrant the jury's finding that Mooney was dead. In 1901 the constitution was amended so that certificates were to be deemed made under and to be construed in accordance with the laws of the state in which the Grand Lodge has its headquarters. In 1913 the constitution was again amended by adding this provision: "No liability arising from the disappearance or the presumption of the death of a member arising from any such disappearance shall be incurred by the Brotherhood. Said Brotherhood shall only be liable for the payment of a death claim when there is positive proof of the actual death of a beneficiary member as previously provided in this section."
Defendant contends that the insurance contract is governed by the laws of Ohio, to which state it claimed the Grand Lodge has *Page 129 been moved. We find no evidence in the record that such is the fact. But that is not important under defendant's theory of the case, for the Illinois courts follow those of Ohio holding valid and applicable to pre-existing contracts of insurance the above quoted amendment to the constitution of defendant, adopted in 1913. Steen v. Modern Woodmen, 296 Ill. 104, 129 N.E. 546,17 A.L.R. 406; McGovern v. The Brotherhood of Locomotive Firemen and Enginemen, 85 Oh. St. 460, 98 N.E. 1128, affirmed on authority of Tisch v. The Protected Home Circle, 72 Oh. St. 233, 74 N.E. 188.
However, we are unable to differentiate this case from Boynton v. Modern Woodmen, 148 Minn. 150, 181 N.W. 327, 17 A.L.R. 401. Both involve a fraternal insurance company. In one a subsequent amendment of the constitution and in the other of the by-laws provide that proof of death and a claim to the insurance cannot be based upon disappearance of the insured, whether the insurance was effected prior or subsequent to such change. It is immaterial whether the amendment is to the by-laws or the constitution, for the amendment of the by-laws of the company is as effective upon the contract of insurance as would be the amendment of its constitution. The only matters in the instant case not found in that of Boynton are that Mooney, in the application, agreed that the insurance contract should be deemed made in Illinois and subject to its laws, and the amendment of 1901 providing it shall be construed in accordance with the laws of the state where the Grand Lodge has its headquarters. But we think this affords no good reason for not applying the principle of the Boynton case. When Mooney was insured, there was no decision in Illinois nor until after he was dead (if we assume that the jury found he died August 1, 1916, on account of the amount of the verdict and the interest allowance from that date), from which it could be inferred that an amendment like that of 1913 would be reasonable as applied to holders of pre-existing certificates. No statute of Illinois was proved touching the question, and decisions of the courts of Illinois subsequent to the death of the insured should not be allowed to bar a recovery in a case where under the law of the forum a good cause of action exists. Moreover, we construe the words "subject to its laws" to mean the *Page 130 statutes of Illinois and not to decisions of its courts thereafter to be promulgated. We adhere to the opinion expressed in the Boynton case that the 1913 amendment of defendant's constitution is unreasonable and nugatory as to insurance contracts entered prior to the amendment. It is deemed unnecessary to discuss the proposition here, the authorities being cited pro and con in that case.
But defendant contends the refusal to follow the decision of the Illinois court is to fail to give full faith and credit to the judicial proceedings of that court as required by art. 4, § 1, of the Federal Constitution. Royal Arcanum v. Green,237 U.S. 531, 35 Sup. Ct. 724, 59 L. ed. 1089, is cited, and Hartford Life Ins. Co. v. Ibs, 237 U.S. 662, 35 Sup. Ct. 692, 59 L. ed. 1165, may be added. In both cases the point determined was that a judgment, entered in a controversy between the insurance company and some of its members in an action brought in behalf of all members similarly situated to determine membership dues, is a judgment which must be given full faith and credit in every state in the Union in subsequent suits between a member and the company involving the same question. The judgments in the cases cited were rendered by the courts of the state where the companies were organized. This is no such case. The Illinois case cited, and which was offered in evidence, did not concern either party to the suit at bar.
The plaintiff, the beneficiary, has always resided in this state. She paid dues subsequent to Mooney's disappearance until September, 1922, when she testified the last payment was refused and returned to her. Some contention is made, though not stressed, that proofs of death have not been furnished. Defendant denied liability, under circumstances showing it knew the impossibility for plaintiff to ever furnish proof of loss otherwise than in a lawsuit by establishing disappearance for such length of time that a jury could find her husband dead. This amounted to a waiver of the proofs of death called for by the contract.
The judgment is affirmed. *Page 131
On July 24, 1925, the following opinion was filed: