delivered the opinion of the court.
The first claim made is that the court should have found the issues for the defendant. We can not so hold as a matter of law.
The evidence on behalf of appellee tends to show a state of facts which would justify a recovery, but there is a conflict in the evidence as to the extent of the insanity of Mr. Jordan when he committed suicide, as we think the clear preponderance of the evidence shows he did. That he was insane for some weeks prior to his suicide, the evidence tends strongly to establish, as well as to show that he was bereft of all reason and incapable of forming an intention to take his own life or of understanding the physical effect of any act which was likely to result in his death. At the same time there is evidence which strongly tends to show that this act was done deliberately and that he knew at the time that the things which he did would cause his death. Conn*634sel for appellant thus states the substance of that part of the evidence, which seems to be substantially correct, viz.:
“ The evidence further shows that on Saturday, March 6, 1897, shortly before seven o’clock p. m., Wilhelm Jordan came to his death by hanging himself, bv taking a piece of rope, wash line, and fastening one end of the rope on the joist or rafters running over his róom. The other end was tied around him. His head was in a sling. The rope went through a loop and then around his neck, and was tied up to the roof. When found he was hanging by this rope, and his feet were four or five inches from the floor. Hear by was a chair. This is in substance the statement of the witness who found him and cut him down. The witness gives it as his opinion that Jordan stepped on the chair. He also says there was no other way to get up there besides the chair.’ ”
This being the state of the evidence, we think there was presented a question of fact on which reasonable minds might well differ, and therefore it can not be said, as matter of law, that the finding should have been for the appellant.
In the case of Nelson v. Equitable Life Assurance Society, 73 Ill. App. 133-46, we reviewed the authorities upon the question here presented, and there said :
“ It thus is clear that when the policy contains the sane or insane clause, it is not necessary, in order to avoid liability, to show that a person taking his own life was conscious of the moral quality or consequences of the act, but only that he was conscious, at the time, of the physical nature and consequences of the act, that is, that he knew that the means he employed would cause death or endanger his life. Some of the cases go further, and hold that under this clause it is immaterial whether the assured even knew the physical consequences of his act; but we think that should be shown, in order to avoid liability by the insurer.”
The exact question has not been decided by the Supreme Court, so far as we know, but we think that our conclusion in the Helson case is supported by the weight of authority. In fact, 'counsel do not disagree as to the law on this point. Counsel for appellee relies upon some of the cases quoted by this court to support the Helson case.
*635The propositions of law quoted in the statement as having been held by the learned trial judge, show, in our opinion, that he committed no error in holding the same as the latv of the case. A number of refused propositions, which it is claimed the court erred in refusing, are in substance covered by those held.
The cause, up to the time the evidence closed, was heard before the court and jury, when, in the course of a coloquv between court and counsel as to whether there was a question of fact to be submitted to the jury, viz., as to whether the deceased was sufficiently sane to understand the nature of the act of suicide, the court, in speaking to appellee’s counsel, said:
“ I thought the doctor set you right on that in stating there are no degrees of insanity; if a man is insane he is insane all through; you are still coming back to it now; you say he is insane and they don’t dispute that; therefore there is no question of fact for the jury to pass on. To say that he was or was not insane, then, resolves itself purely into a question of law. He did take his life — nobody disputes that. There is no particular dispute on that question. How, what have you got to say on the question of law ? ”
From this statement, as well as others in the record, we think it apparent that the court reached the conclusion he did solely upon the ground that if, as he found, it was established by the evidence that Mr. Jordan was insane at the time he took his life, it was immaterial whether he knew, at that time, the physical nature and consequences of the acts leading to his death. We therefore think that there should be another trial, from which we would have the benefit of a decision of the trial court on this question of fact.
A further contention is made, that there was error in sustaining a demurrer to the tenth plea, which presents the question as to whether the appellee, before bringing suit, should have submitted her claim to the approval of appellant’s executive committee, and in case of its rejection, should have appealed to the Supreme Lodge of appellant, pursuant to the provisions of the by-laws of appellant then in force, which required this to be done, and in case of fail*636ure so to do, the beneficiary’s rights would thereby be forfeited.
This question must, in our opinion, by reason of the facts shown on the hearing, be determined against the appellant. In the first place, such a provision in the by-laws as to a matter of the nature here presented, concerning, as it does, the liability of appellant under a death claim made on its certificate of insurance, is not binding upon the beneficiary; and secondly, even though the by-laws are binding in this regard, this provision has been Avaived by the action of appellant, through its supreme secretary, Avho, under date of June 18, 1897, by letter, notified appellee that the executive committee of appellant had not approved the claim on account of the death of Mr. Jordan; that the claim would not be paid because he had committed suicide less than three years after he became a member, this being in violation of appellant’s by-laws. People v. Order of Foresters, 162 Ill. 78-83, and cases cited; Stephenson v. Ins. Co., 54 Me. 55-70; Avery v. Scott, 20 Eng. L. & Eq. R. 327; Grand Lodge, etc., v. Randolph, 84 Ill. App. 220-7, affirmed, 186 Ill. 89.
In People v. Order of Foresters, supra, in Avhich the court considered the right of a member to file a petition for mandamus to compel a fraternal society to restore such member to the privileges of the society Avithout first exhausting the remedies secured to her by its constitution and by-laws, it says:
“It is to be remembered, however, that there is a clear distinction betAveen the obligation to appeal from the lower to the higher tribunals of the society itself, resting upon one who presents a question of discipline, and such obligation so far as it concerns one who asserts a claim to money due upon a contract. Where the controversy is concerning the discipline or policy or doctrine of the order or fraternity, the member must resort to the method of procedure prescribed by the association, including the remedy by appeal, before invoking the power of the courts. But it is otherwise Avhere a member claims money due from the society on its contract, or where the beneficiary of a deceased member claims money due from the society on its contract of insurance; in such case, the right to resort to the courts to coerce payment will not be abridged by the right of appeal from *637a lower to a higher tribunal of the society as conferred by its laws and rules. ‘ Courts of justice are freely open to those who seek money due them upon a contract.’ ”
In the Randolph case, supra, the by-law was permissive only; but in the Stephenson and Avery cases, the courts sustain the conclusion reached by the Supreme Court above noted. The case of Railway Conductors’ Benefit Ass’n v. Robinson, 147 Ill. 148, relied upon by appellant, is not, in our opinion, applicable here; it rather tends to support the proposition that the by-laws in the respect claimed are not binding on the appellee.
The other cases relied on, being decisions of the Appellate Courts of this State and foreign jurisdictions, even if it can be said that they sustain appellant, must yield to the ruling of the Supreme Court above quoted.
But if tire by-laws can be said to require the appellee, before bringing suit, to pursue the rémedy thereby provided, the requirement is one which the appellant may waive, and in our opinion, by its refusal absolutely to pay the claim, it has waived. Metropolitan, etc., Ass’n v. Windover, 137 Ill. 417-32; Ry., etc., Ass’n, v. Tucker, 157 Ill. 194-201.
We think there was no error in sustaining the demurrer to the tenth plea. Other points made by counsel, in view of the conclusions reached, do not require special mention.
The judgment is reversed and the cause remanded.