#### Voelkel, Appellant, vs. The Supreme Tent of the Knights of the Maccabees of the World, Respondent.

*November 29, 1902*

January *13, 1903.*

*Life insurance: Benefit associations: Suicide: Waiver:*Admissions-*against interest: Evidence.*

*1. The*rules of a mutual benefit association provided that the local: tent was the agent of its members in collecting dues and assessments, and that the supreme tent should not be liable for any negligence, or bound by any illegal action or irregularity, of such local tent. The rules further provided that, in case of suicide, the association should be liable only to the amount of assessments paid in. Four days after the death of an insured, by suicide, the collector of a local tent accepted of the beneficiary the assessments due at the date of insured's death. *Held,*that if such reception of the dues was irregular, it was an error of the beneficiary’s own agent, of which she could not take-advantage.

2. Where a mutual benefit association was liable for some amount, whether the insured committed suicide or not, the fact that the-association requested proofs of death, which were furnished, and the beneficiary, after her claim had been rejected because-of suicide, prosecuted at some expense an appeal before the-appellate tribunal of the association, does not operate as a waiver.

3. Statements by a beneficiary in the proofs of death that the cause-of insured’s death was suicide are admissions against interest,, and establish *prima facie*the fact of suicide.

4. In an action on a mutual benefit certificate the evidence examined, and *held*to support a finding that the cause of insured's-death was suicide.

Winslow and Dodge, XX., dissent.

Appeal from a judgment of tbe circuit court for Milwaukee county: La whence W. Halsey, Circuit Judge.

*Affirmed.*

Action on a policy of life insurance issued by defendant-on tbe life of Joseph D'empke, payable to tbe plaintiff, bis-wife. Tbe assured died February 8, 1900. Plaintiff bas-*203since married. Tlie complaint is in the nsual form. Tlie defense was that the deceased committed suicide contrary to the-terms of the policy and application. Section 1Y3 of defendant’s rules declares that no benefit shall he paid “when death was the result of suicide within five years after admission.” If death by suicide occurs within said time, all assessments-paid to the supreme tent by such member shall be paid back to the beneficiary named in the certificate in full for the-amount that can be claimed in any case. Defendant tendered judgment for $168.58, being the amount of assessments paid, with interest, and for costs. It was a conceded fact in the-case that Dempke came to his death by a pistol wound in the-head. The rules of the defendant required plaintiff to present proofs of death on blanks furnished by it, showing,, among other things, the cause of death. In compliance therewith, plaintiff furnished said proofs, in which it was stated three times that the cause of death was suicide by shooting. The only question litigated on the trial respecting the cause-of death was whether the pistol was fired intentionally or accidentally. Some question as to waiver by defendant was-presented, which will be noted in the opinion. After hearing-all the proofs, the trial court directed a verdict for defendant on both issues. A new trial was denied, and judgment entered for plaintiff for the amount of assessments paid, interest, and costs to time of tender of judgment, from which-she has taken this appeal

For the appellant there was a brief by *Nath. Pereles & Sons,*and oral argument by *G. F. Hunter.*

For the respondent there was a brief by *Quarles, Spence & Quarles,*attorneys, and *George Lines,*of counsel, and oral argument by *Mr Lines.*

BaRdeeit, J.

1. As we read and interpret defendant’s-rules, if the death of the insured occurred by suicide within-five years after his admission to the order his beneficiary-*204■would only be entitled to the assessments paid in. On Feb.ruary 12, 1900, four days after the insured’s death, the plaintiff paid the record keeper of the local tent $2.25 for an assessment due on February 1st, and thereafter the said record keeper asked plaintiff for proofs of death, which she furnished at the expense of six or eight dollars. After such proofs were furnished, her claim for the full amount under the certificate was' rejected because of suicide by insured, and :she was thereafter notified that she might appear4 before the .appellate tribunal of the order, and show cause why she ■should receive any more than had been paid for assessments. This she did, but the court refused to allow her to show the ■amount of such expense. Upon these facts, the plaintiff ■claims a waiver. As to the question of receiving the money after death of insured, sections 233 and 234 of defendant’s ■rules provide that the subordinate tent is the agent of its •members in collecting and transmitting dues and assessments, and that the supreme tent should not be liable for any negli.gence, or bound by any illegal action or irregularity, of such subordinate tent. Under the facts stated and the rules noted, the reception of the money by the collector, if irregular, was .an error of the plaintiff’s own agent, which she cannót now take advantage of.

Under defendant’s laws, it was responsible in some amount, whether the insured committed suicide or not. It had a right -to demand proofs of death in either case. No liability arose until such proofs were furnished. The fact that plaintiff furnished such proofs, and prosecuted an appeal before the appellate tribunal at some expense, did not operate as a waiver, as such procedure and the expense thus incurred was in pursuance of her attempt to establish her claim under the laws -of the order. The defendant was absolutely entitled to proofs •of death under its rules. The pursuit of her rights before the appellate tribunal of the order was purely voluntary, and not in any way induced by the defendant. No elements of waiver *205were shown, and the trial court rightly denied plaintiff any relief on that ground.

2. It was a conceded fact that Dempke came to his death' by a pistol-shot wound in the head, and that such wound was - occasioned through the active agency of deceased. In complying with defendant’s rules in relation to proofs of -death, the plaintiff asserted in her own affidavit, in the certificate of' the coroner, and again in the certificate of the lodge officers,, that the cause of Dempke’s death was suicide by shooting.. These statements were admissions against interest, and established *prima, facie*the fact of suicide by the insured. *Hart v. Fraternal Alliance,*108 Wis. 490, 494, 84 N. W. 851, and" cases cited. Such proofs being produced by the plaintiff, and" showing death from one of the causes excepted in the policy,. was an absolute bar to her recovery, unless it was shown by other evidence that the shot which caused Dempke’s death-was not fired by him with intent to take his life. Has such-evidence been produced? The following facts were established: Deceased was a man of quiet, reserved disposition,, with a tendency to melancholy and nervousness. About two-years before his death he fell downstairs, receiving serious injuries, causing hemorrhage of the stomach, which trouble-continued, in a degree, to the time of his death. He was confined to his house for some time, and was never the same-man afterwards. A few weeks before his death he struck his head against an iron ball on a machine he was using, and ever since he was, as plaintiff expressed it, “queer.” On February I, 1900, — the day before his death, — he fell, striking-his left hand upon a tack, sustaining a slight injury. He-went to a doctor in a state of considerable excitement, expressing a fear of blood poisoning. The doctor dressed his-hand, and sought to remove the apprehension of danger by, assuring him it would probably be all right.' He went home pale and excited, and again expressed to plaintiff fear of' blood poisoning. During the night he was restless and sleep*206■less, and bad plaintiff dress bis band repeatedly. Tbe next day be arose at bis usual time, but did not go to work. Pie ate but little breakfast, and tlien listened to bis wife read a ■newspaper. About balf past nine or ten o’clock, tbe plaintiff, being engaged in ber bousebold work, left tbe bouse to get a pail of water, leaving plaintiff sitting on a coucb in tbe dining room. She returned in about two minutes, and found deceased sitting on tbe floor in tbe corner of bis bedroom, with bis back against tbe wall, bis legs outstretched and spread apart, tbe revolver lying on tbe floor between bis thighs, tbe muzzle pointing away from bim, and bis right band either grasping or covering it. Tbe post-mortem examination showed tbe bullet bad entered Dempke’s bead about •one and one balf inches back and one inch above tbe right eye, passing through the brain in a practically horizontal ■course, and lodged on tbe other side of bis bead. No powder marks were observed either by tbe doctor, who came soon after tbe shooting, or by tbe plaintiff, and it appears that no •special examination was made. D'empke’s family relations were pleasant, and be was a saving and industrious workman, and fairly prosperous for a man in bis station. These are tbe material facts disclosed by tbe undisputed testimony. It is not questioned that bis death was caused by a bullet from ■tbe revolver found on tbe floor between bis legs. The course •of tbe bullet makes it certain that tbe revolver, when discharged, must have been pointing toward tbe right temple, and in line with a plane passing through bis brain, and irresistibly suggests that it must have been held in deceased’s •own band when fired, — a suggestion which is strongly corroborated by tbe fact that, when found, bis right band either .■grasped or rested upon tbe revolver as it laid upon tbe floor. Tbe position of tbe body, partially leaning against tbe wall, is also significant. T'o us it does not seem that there is a single fact in the case that suggests any other cause of death than suicide. Tbe proofs of death, with the accompanying *207'circumstances referred to, make the case quite as strong •against the plaintiff as in *Agen v. Metropolitan L. Ins. Co.*105 Wis. 217, 80 N. W. 1020, and *Hart v. Fraternal Alli*ance, 108 Wis. 490, 84 N. W. 851, and justify the trial court in its ruling.

*By the Court.*— -The judgment is affirmed.

Winsnow and Dodge, JJ., dissent.