The rule of construction, though not always recognized by the cases, is that this condition, being in the nature of a penalty or forfeiture, must be strictly construed.

In John Hancock Mutual Life Insurance Company v. Moore, 34 Mich. 41, Mr. Justice Campbell, speaking for the court, said: "The condition which makes the policy void in case of such a death is in the nature of a penalty or forfeiture... The forfeiture in this case was to arise if the insured died by his own hand. Some stress is laid on the term 'suicide' as if it means a wrongful act or self murder. It has no such restricted meaning. It means self killing just as homicide means killing anyone else. But there may be excusable homicide as well as felonious, and suicide was only cognizable at law when the person was felo de se or guilty of a felonious act. If non compos mentis the actor in homicide or suicide commits no crime. In one sense the man dies by his own hand who kills himself, whether sound or frenzied. But the condition in this policy cannot be construed to cause a forfeiture for acts involving no evil will."

Upon the question of voluntary suicide intentionally committed by a sane man in the possession of his faculties, knowing how to adapt means to end and conscious of the immorality of the act there is no difference of opinion; and all authorities agree that self destruction is within the exemption; and all authorities like wise agree that an accidental death, as by taking poison by mistake or shooting oneself with a pistol, supposing it not to be loaded, or falling from a building, or death happening in any way by the unintended act of the party dying, is not within the exemption.

But whether suicide by an insane man is also within the exemption has been the question in dispute, and upon this two prominent and different doctrines have been maintained.

On the one hand it is maintained that if the act be voluntarily done in pursuance of an intelligent purpose, and intentionally and intelligently carried out by the proper adoption of means to ends, it is suicide on the part of the insured or death by his own hands, although insanity exists to such an extent that he may not be able to appreciate the moral qualities of the act. On the other hand it is maintained that however intelligently the act may be done, if at the time the will be overpowered by an uncontrollable impulse, or the party be unable to appreciate the moral character of the act, it is not within the meaning of the provision. May, Ins. 307.

The rule in England was laid down in 1842 in Borradaile v. Hunter, 5 Man. & Gr. 639, and has since been adhered to. In this case the words of the condition were that the policy should be void if the assured should "die by his own hand." He threw himself from Vauxhall Bridge into the Thames and was drowned. The jury found that he voluntarily threw himself into the river, knowing at the time that he should thereby destroy his life, and intending thereby to do so; but at the time of com

It was held that the policy was void, the rule being laid down in effect that the moral condition of the mind was immaterial; and if, when the act was done, the insured knew that life would be thereby destroyed and intended it to be so, the policy is violated under the condition, although the insured was insane at the time.

In Dean v. American Mutual Life Insurance Company, 4 Allen, 96, the Supreme Court of Massachusetts held substantially the doctrine as laid down in Borradaile v. Hunter, supra.

In St. Louis Mutual Life Insurance Company v. Graves, 6 Bush, 268, the Supreme Court of Kentucky were divided upon the question of the soundness of Borradaile v. Hunter, but unanimously agreed that where the suicide was committed during an uncontrollable passion caused by intoxication the condition was broken and the policy avoided.

In a more recent case in Massachusetts, Cooper v. Massachusetts Mutual Life Insurance Company, 102 Mass. 227, the question came again before the court, and the ruling in Dean v. American Mutual Life Insurance Company, supra, was adhered to. The proviso in the policy is that it shall be void if the assured shall die by suicide. The plaintiff offered to prove that the assured at the time of committing the act of self destruction was insane. The court said: "In the present case there was no offer to prove madness or delirium, or that the act of self destruction was not the result of the will and intention of the party, adapting the means to the end, and contemplating the physical nature and effects of the act."

66

The earliest case in New York is that of Breasted v. Farmers Loan & Trust Company, 4 Hill, 73. The policy was to become void if the assured died by his own hand. The insured came to his death by suicide in drowning himself in the Hudson River. Chief Justice Nelson, delivering the opinion of the court, said: Speaking legally, also . . . self destruction by a fellow being bereft of reason can with no more propriety be ascribed to the act of his own hand than to the deadly instrument that may have been used for the purpose. The drowning of Comfort was no more his act, in the sense of the law, than if he had been impelled by irresistible physical power; nor is there any greater reason for exempting the company from the risk assumed in the policy than if his death and been occasioned by such means. . . Suicide involves the deliberate termination of one's existence while in the possession and enjoyment of his mental faculties. Self slaughter by an insane man or lunatic is not an act of suicide within the meaning of the law"-and citing 4 Bl. Com. 189; 1 Hale, Pl. C. 411, 412.

This case was modified, if not overruled, in Van Zandt v. Mutual Benefit Life Insurance Company, 55 N. Y. 169, where it was held that, under a condition as above, the only exception to the condition is where the act is accidental or involuntary; that to take a case out of the proviso the insured must have been so mentally disordered as not to understand that the act he committed would cause his death, or he must have committed it under the influence of some insane impluse which he could not resist; it is

not sufficient that his mind was so impaired that he was not conscious of the moral obliquity of the act."

In the later cases in New York it is held that the words "die by his own hand" have ref erence to an intelligent voluntary act, and not to a suicide committed by a party in a state of mental derangement so great that the act of self destruction is to be regarded as wholly involuntary. De Gogorza v. Knickerbocker L. Ins. Co. 65 N. Y. 235; Weed v. Mut. Ben. L. Ins. Co. 70 N. Y. 561; Newton v. Mut. Ben. L. Ins. Co. 76 N. Y. 426.

The Supreme Court of Maine in Eastabrook V. Union Mutual Life Insurance Company, 54 Maine, 224, where the condition of the policy was that if he should "die by his own hand and the jury found that the self destruction was the result of a blind and irresistible impluse over which the will had no control, and that self destruction was not an act of volition," approved Breasted v. Farmers Loan & Trust Company, supra, holding that suicide, to avoid a policy of life insurance, must be a criminal act -one done with an evil motive.

The leading case upon the subject is that of Mutual Life Insurance Company v. Terry, 82 U. S. 15 Wall. 580 [21 L. ed. 236], and approving what had been known as the New York doctrine. In this case the policy was to be void if the insured should die by his own hand. Mr. Justice Hunt, after a full review of the cases, laid down the rule thus:

"If the assured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches, and there can be no recovery. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that he is not able to understand the moral character, the general nature, consequences and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse which he has not the power to resist, such death is not within the contemplation of the parties to the contract and the insurer is liable.'

This rule has been approved by subsequent cases in that court: Charter Oak L. Ins. Co. v. Rodel, 95 U. S. 237 [24 L. ed. 434]; Manhattan L. Ins. Co. v. Broughton, 109 U. S. 123 [27 L. ed. 879], citing and approving the opin ion of Chief Justice Nelson in Breasted v. Farmers Loan & Trust Co. supra.

The rule laid down in Mutual Life Insurance Company v. Terry, 82 U. S. 15 Wall. 580 [21 L. ed. 236], is substantially the same doctrine as stated by this court in John Hancock Mutual Life Insurance Company v. Moore, supra.

We think the reasonable rule is as stated by Mr. Justice Hunt in Mutual Life Insurance Company v. Terry, supra: "If the assured being in possession of his ordinary reasoning faculties, from anger, pride, jealousy or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches and there can be no recovery. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that he is not able

to understand the moral character, the general nature, consequences and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse, which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable.'

This doctrine is approved and followed in express terms, or in substance, in Charter Oak L. Ins. Co. v. Rodel, 95 U. S. 232 [24 L. ed. 433]; Manhattan L. Ins. Co. v. Broughton, 109 U. S. 121 [27 L. ed. 878]; Waters v. Conn. Mut. L. Ins. Co. 2 Fed. Rep. 892; Moore v. Conn. Mut. L. Ins. Co. 3 Fed. Rep. 444 (U. S. C. C. Eastern District Michigan); Merritt v. Cotton States L. Ins. Co. 55 Ga. 103; Phillips v. Louisiana Eq. L. Ins. Co. 26 La. Ann. 404; John Hancock Mut. L. Ins. Co. v. Moore, 34 Mich. 41; Scheffer v. National L. Ins. Co. 25 Mian. 534; Conn. Mut. L. Ins. Co. v. Groom, 86 Pa. 92; Hathaway v. National L. Ins. Co. 48 Vt. 335.

The same doctrine in substance is laid down in Eastabrook v. Insurance Company, 54 Maine, 224, approving the principal cases.

The effect of this doctrine is that, in order to work a forfeiture under such a policy on the ground of self destruction, the assured must have had sufficient mental capacity not only to understand that the act will destroy his life, but also distinguish its moral quality and consequences, the right and wrong of it, and must perform the act not under any uncontrolled impulse resulting from insanity but voluntarily with the intent to end his life; in other words that it must be an act done with an evil motive.

We think that this doctrine is supported by the great preponderance of authority in this country and must be conceded to be the prevailing American doctrine. And it seems to us to be the safer and more reasonable and more consistent doctrine. It agrees with the general rule as to the excusatory feature of insanity in civil as well as in criminal cases. It also operates to prevent forfeiture, which is a favorite principle of an enlightened jurisprudence. Nor can it have any injurious effect, since insurers may always frame such contracts to suit themselves, and may if they choose insert express stipulations to the effect that insanity shall not in any case prevent an avoidance by the suicide of the assured.

As is stated in a note to Breasted v. Farmers Loan & Trust Company, 8 N. Y. 299, 59 Am. Dec. 494:

"If they prefer, for the purpose of getting custom, to omit such stipulations and to leave the matter in doubt, the doubt ought to be resolved against them. If the assured is to take the sole risk of his becoming insane and destroying his life, let him have notice of the fact by having it clearly 'nominated in the bond.' As has been well said in some of the cases referred to, insanity is as much a disease as fever or consumption; and upon principle there is no more reason why an insurance of one's life should not be an insurance against death from the former disease than against death from the latter, if there is nothing to the contrary in the policy."

Policies issued by some life insurance companies contain a condition or provision that it shall be void if the assured shall die by suicide, felonious or otherwise, sane or insane; others

Such a condition expressed in any of these forms covers any case of voluntary self destruction, and no kind or degree of insanity will prevent an avoidance; and the courts, not only in England, but in this country, have almost universally held that with such provisions in policies of life insurance the policies are void if the insured comes to his death by his own hand. Some of those cases are cited by the learned counsel for the defendant in his brief, as having some bearing upon the question now in issue. We think they have no bearing upon the case where no such proviso is found in the policy.

Defendant's counsel seem to rely to some extent upon the ruling of this court in Streeter v. Western Union Mutual Life & Accident Society, 8 West. Rep. 183, reported in 31 N. W. Reporter, 779, as bearing upon the question whether the insured came to his death in this case by accidental injuries.

The policy in that case contained a condition: "If the assured shall within three years from the date of this policy die by his own hand, sane or insane, this policy shall become and be null and void. Within the three years from the date of the policy the insured died from the effects of a pistol shot wound inflicted upon himself.

This court followed the opinion of Mr. Justice Davis in Bigelow v. Berkshire Life Insurance Company, 93 U. S. 284 [23 L. ed. 918], holding that no recovery could be had upon the policy by reason of the limitation contained in the proviso, "sane or insane." After quoting from the opinion of Mr. Justice Davis it was said: "If a person does an act in a state of unconsciousness or involuntarily, whether he be sane or insane, such act is nothing more or less than accidental and would not operate to forfeit the policy. The record in this case does not disclose such a state of facts. There was no evidence that the act was involuntary or that Mower was not conscious when he inflicted upon himself the fatal wound."

The policy covers all conscious acts of the insured by which death by his own hand is compassed whether he was at the time sane or insane. If the act was done for the purpose of self destruction it matters not that the insured had no conception of the wrong involved in its commission.'

Counsel for the defendant now insists that if the insured was insane his insanity caused his death and that insanity is a disease, and that the question remaining and upon which the court must pass is, Is the death caused by the disease, insanity, and accidental death? The policy provides "that the insurance shall not extend to any bodily injury of which there shall be no external or visible sign, nor to any bodily injury happening directly or indirectly in consequence of bodily infirmities or disease, nor to anyone except when the injury is the proximate and sole cause of the disability or death."

Legal Relations, published in 1883, at section 23 says: "We think sufficient evidence has already been educed to show that insanity is a physical and not a mental disease. And yet the proof par-excellence remains to be offered. We have taken considerable trouble to acquaint ourselves with the facts, and we believe that there is no alienist in the United States who believes that insanity is a disease of the mind." And the learned doctor offers the following as a definition of insanity: "A diseased or disordered condition or malformation of the physical organs through which the mind receives impressions or manifests its operations, by which the will and judgment are impaired and the conduct rendered irrational." And he says: "As a corollary we offer, insanity being the result of physical disease, it is a matter of fact to be determined by medical experts, and not a matter of law to be decided by legal decisions and maxims."

Agreeing as we do with the learned doctor, that insanity is a physical disease and a question of fact for determination in the case, let us see what has been determined by the jury, before considering the proposition made by the counsel for the defendant:

The jury found first, that the insured killed himself; second, that he did not know at the time that he was committing an act which must result in death; third, that he was not conscious of what he was doing; fourth, that he did not intend to cut his throat and thereby kill himself; and fifth, that at the time he did cut his throat he was insane.

Admitting that there was some evidence to go to the jury upon these questions, and that those questions have been properly submitted to them by the court upon the trial, then we are asked to say that, insanity being a disease, that disease was the proximate cause of the death of the insured, and that he did not come to his death by an external accidental injury within the meaning of the terms of the policy. In Accident Insurance Company of North America v. Crandal, 120 U. S. 530 [30 L. ed. 742], a policy similar in form and conditions was issued based upon an application, in substance the same as the one in issue here. Mr. Justice Gray, delivering the opinion of the court in that case, said: "The single question to be decided, therefore, is whether a policy of insurance against 'bodily injuries effected through external, accidental and violent means,' and occasioning death, or complete disability to do business, and providing that this insurance shall not extend to death or disability which may have been caused wholly or in part by bodily infirmities or disease, or by suicide or self inflicted injuries,' covers a death by hanging one's self while insane.

It is also held where, one being insane and through his insanity has placed himself in a dangerous position where he would not have been found had he been in his right mind, and has met with an accidental death by reason of his insanity, that the company is liable and recovery can be had. That where one in a fit of insanity involuntarily falls off a bridge and is killed, or falls into a stream and is drowned, this being involuntary, the company is liable. Yet, counsel say that these classes of cases are external injuries, injuries producing death of the insured from outside causes, and for that reason the company may be held liable.

We think where one is so far beside himself, his intellect so darkened and obscured that he may be neither morally nor legally responsible for his own acts and conduct, and in such condition produces his own death, it cannot be any more said to be his act than though the act had been committed by another, or the insured had placed himself upon some dangerous height and fallen involuntarily and had been dashed to pieces.

Some other questions are raised by the record, but we do not deem them of sufficient importance to discuss them here.

We think the case was fairly submitted to the jury by the court and fairly tried. The court upon this question of insanity of the deceased, instructed the jury:

"But, as I have before stated, the mere fact that a man kills himself does not of itself estabJish insanity. A man may do that by reason, as I stated, of lack of courage to undertake the work which his life seems to furnish for him; may get discouraged and feel he would rather take his chances in the life to come than here. And if in that spirit he determined to take his own life that would not be the taking of his life under the condition of mind which the law would say was insanity. If you believe Mr. Blackstone took his life under such conditions, then the plaintiff cannot recover; otherwise, if you believe, as I have charged you, that he had no power to do it, and had not capacity of mind to do it, then the plaintiff would be entitled to recover, because, as I have instructed you, death under such circumstances would be accidental."

Some question is raised now by the defendant that there was proof of the insanity of the deceased some twenty years before the time of the taking out of the present policy. Some evidence was given of this upon the trial.

Defendant's counsel insists that this was a concealment of a fact from the insurance company at the time of the application in the present case. This objection was overruled by the court below and we think very properly, under the testimony of the defendant's own agent, Mr. H. E. Rich, who took the application in the present case. He testified that he remembered of taking the application, that he wrote the body of it.

He says he had a previous talk with Mr. Blackstone coming across on the Jackson Branch from Tecumseh to Adrian, "And we renewed our talk in regard to accident insur

so much. I told him he could make it in two payments, pay part in thirty days and the balance in sixty days, for $5,000 and $25 weekly indemnity. He thought he would be able to make the payment in that way and said he would talk with his wife in regard to it and see whether she thought he had better do so. He never had carried any he said, but he would come in and see me before he left town. He came in afterwards and said he had concluded to take a policy. I took out the application and filled it out. He said he would take the amount we talked of and I asked him his full name and who the beneficiary would be and he told me. I asked him if he had any other accident insurance and he said No,' and I drew a line through it and turned to him-be sat opposite my desk-and told him to sign on the line-sign his name in full, same as I had written it in the heading. He did so and I took the application and put it in my drawer."

On cross examination the witness said: "I didn't notice any difference in him than in any other man that I had ever solicited. He was as well informed as ordinary men I talk with on the same subject. The question was the amount in case of death and the amount of indemnity; that is all that was talked over. I should say he was an ordinarily informed man. Not more than ordinarily well informed, as you meet them in soliciting insurance."

No evidence was given tending to prove that Blackstone was not sane at the time of the tak ing of this policy, or that he had had any trouble mentally for a period of twenty years.

The court in its direction to the jury excluded this whole question and told the jury that it was claimed on the part of the plaintiff, who introduced the testimony, that it tended to establish the fact of his insanity at the time of committing the act.

That it was claimed on the part of the defendant that it tended to establish that he was subject to mental disease and that therefore by the terms of the application it was a false representation-that Blackstone made a false representation in making the application, as regards that fact. But the court said: "Gentlemen, for neither of these purposes, nor for any other purpose whatever in the case, shall you consider this testimony."

And we think the court very properly exIcluded this from the consideration of the jury. We need not discuss the other questions raised. The judgment of the Court below must be affirmed, with costs.

Morse and Champlin, JJ., concurred.

Campbell, J., concurring:

I have had great doubts whether this was enough evidence to go to the jury on the question whether when Mr. Blackstone killed himself he was non compos mentis. But I am disposed to concur in the view that there was some such testimony, and that therefore the jury could act on it. I also agree that suicide by a person non compos does not come within the forfeiture clause of the policy.

It has frequently been held by this court that such unsoundness is a question of fact, and not of law. I do not therefore think it necessary