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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."

It will be noticed that this is even more liberal than the preceding case, for it brings in the idea of an irresistible impulse as well as a lack of appreciation of the moral consequences of the act. To the average juryman in such a case the convincing proof of the irresistibility of an impulse would be the fact that it was not resisted. It seems to us hardly worth the while to separate these decisions of such marked leniency into separate classes. One or both of them has been adopted in the following cases: Life Insurance Co. vs. Groom, 86 Pa. St. 92; Schultz vs. Insurance Co., 40 Ohio St. 217; Hathaway vs. Insurance Co., 48 Vt. 335; Life Insurance Co. vs. Broughton, 109 U. S. 121; Eastabrook vs. Life Insurance Co., 54 Me. 224; Blackstone vs. Standard Co., 74 Mich. 593; Life Assn. vs. Waller, 57 Ga. 533; Knickerbocker Insurance Co. vs. Peters, 42 Md. 414; Scheffer vs. National Co., 25 Minn. 534.

The situation in New York State is rather interesting. In the case of Breasted vs. Farmers' Loan and Trust Co., 4 Hill (N. Y.) 73, the court, as we have seen, made a most liberal decision, but this was overruled in Van Zandt vs. Life Insurance Co., 55 N. Y. 169. Although in this latter decision the idea that moral irresponsibility excused the act of suicide is distinctly rejected, the doctrine of irresistible impulse is faintly outlined. This grew into large proportions in the case of Newton vs. Life Insurance Co., 76 N. Y. 426, and became the predominant thought in the ruling; thus: "Without referring to the evidence in detail, our conclusion is that although it might have required the jury to find that Ross was aware when he took the laudanum that it would terminate his life, yet it would also have justified a finding that he acted under the control of an insane impulse caused by disease and derangement of his intellect, which deprived him of the capacity of governing his own conduct in accordance with reason. An act committed under such circumstances cannot be regarded as voluntary or within the proviso of the policy."

This view was affirmed in the case of Meacham vs. Benevolent Association, 120 N. Y. 237, where it was held that: "Unless, therefore, such selfdestruction was the result of accident, mistake, or insanity, or was involuntary because he was driven to it by an insane impulse, which disabled him from controlling his own actions, Hay committed suicide within the meaning of the policy and it became void." This was a question of fact for the jury to determine, which they did in the usual way.

At this time we must range New York with the liberals in this matter. It is not worth while, for practical purposes, to separate cases of "moral irresponsibility" from those of "irresistible impulse." The result is the same, for the question, being one of fact, is left to the jury, and they always find for the plaintiff in these cases.

7. In order to obviate the difficulties mentioned in the previous section, the companies have inserted additional qualifying words, commonly" sane or insane." The following expressions have been considered as synonymous with that: "self-destruction, felonious or otherwise," "while insane," "dying by his own act or intention, whether sane or insane." But the meaning must be very clearly expressed, or the courts will disregard the apparent intention of the insurers and rule against them, for, as has been already stated, it is well understood that, in case of any

doubt, the interpretation of the contract will be adverse to the insurers, as they were the ones who drew it up. Consequently, the following clauses have not been held to make any additional restriction: "dying by his own hand or act, voluntarily or otherwise" (Jacobs vs. Life Insurance Co., 5 Bigelow's Life & Acc. Cases 42), "under any circumstances die by his own act or hand" (Schultz vs. Insurance Co., 40 Ohio St. 217).

These additional qualifying words first quoted have been interpreted in two different ways:

(a) By some it is held that all acts of self-destruction not accidental were included in the proviso. In the case of De Gorgoza vs. Life Insurance Co., 65 N. Y. 232, the restricting clause was "die by his own hand, sane or insane," and it was held as follows: "I shall assume that the jury found that when the hand of the assured delivered the fatal shot he was wholly bereft of reason. . . . If the words mean anything, it is just what they commonly import, and that is, if death ensues from any physical movement of the hand or body of the assured, proceeding from a partial or total eclipse of the mind, the insurer goes free. . . . We are of the opinion that, in the common judgment of mankind, it will be consid ered that when a totally insane man blows his brains out with a pistol he will be said to have died by his own hand within the meaning of a policy such as we have now under consideration." In this case the decision was rendered by three out of five judges. In the case of Riley vs. Insurance Co., 25 Fed. Rep. 315, the restricting clause was "self-destruction, felonious or otherwise," and it was held that, no matter under what circumstances he killed himself, no recovery could be had under the policy, but of course that did not mean accidental death. In the case of Searth vs. Insurance Co., 75 Iowa 346, the clause was "suicide, felonious or otherwise, sane or insane." This was held to cover “all suicidal acts, whether such as are denominated criminal, or such as are the offspring of insanity," and a very similar view was held in the case of Salentine vs. Insurance Co., 24 Fed. Rep. 159.

(b) In the other set of cases the additional restrictions are considered apparently to cover the case of intentional suicide, but not if the individual is unconscious of the physical nature of his act and its results, nor perhaps if he is acting under an irresistible impulse. Thus in Pierce vs. Insurance Co., 34 Wis. 389, the restricting clause was "die by suicide, felonious or otherwise, sane or insane," and it was held: "The condition here relieves the company from liability only where the self-destruction was intentional, or committed by a party who was conscious of the nature of the act he was committing, or about to commit, and conscious of its direct and immediate consequences, though the act may have been unaccompanied by any criminal or felonious intent or purpose." Similar language, though not quite as explicit, was used in Bigelow vs. Insurance Co., 93 U. S. 284, and Streeter vs. Insurance Society, 65 Mich. 199. In the case of De Gorgoza vs. Insurance Co. two judges dissented from the prevailing opinion and held views similar to the above.

8. In spite of all restricting words and provisos, there has been found a way to get around the exception in some cases, and that has been by the expedient of calling the suicide an accident. Generally speaking, that is a question of fact, and as such is presented to the jury for its consideration. And there hardly exists a jury which will hesitate in a choice between suicide and accident as the cause of death of one of their neigh

bors. The good old principle, de mortuis nil nisi bonum, will allow but one conclusion.

Of course, if the facts are susceptible of two explanations, the natural, legal, and judicial presumption is that a case is one of accident rather than of suicide. Thus, in Mallory vs. Insurance Co., 55 N. Y. 52, it was held that: "Death was caused by such an injury or the suicidal act of the deceased; but the presumption is against the latter. It is contrary to the general conduct of mankind; it shows gross moral turpitude in a sane person." Similarly, in the case of Insurance Co. vs. Delpeuch, 82 Pa. St. 225, it was held that: "The party alleging suicide must prove it. The mere fact of death in an unknown manner creates no legal presumption of suicide. Upon evenly balanced testimony the law assumes innocence rather than crime. Preponderating evidence is necessary to establish the latter."

The following cases show the present method of avoiding this issue. In the case of Keels vs. Fund Association, 29 Fed. Rep. 198, the insured had been suffering for some months from mental aberration due to softening of the brain. One afternoon his body was found in a pasture, near a fence from which he had apparently fallen, with a bullet-hole in his head and a pistol in his hand. The restricting proviso avoided the policy in case of "death by his own hand, sane or insane, voluntary or involuntary." The jury found for the plaintiff, on the ground that it was an accident. On appeal it was held: "Accidental or unintentional self-killing is not within a condition forfeiting a policy for suicide or taking one's own life, whether such death results from taking poison by mistake, supposing it a wholesome medicine, or from an act done in frenzy or delirium, as by leaping from a window, tearing off a bandage from an artery, or from an act done under the stress of an overpowering force. . . . If it were intended by this policy to include death by accident, it was easy enough to say so." Of course this ruling sounds and reads very nicely, and one might imagine from it that a cruel, grasping corporation was trying to defraud the beneficiary out of her rights on a mere technicality. But it appears that in the proofs of death which the beneficiary submitted to the company she declared, over her own signature, that her husband's death was due to suicide, superinduced by dementia. Also this was the verdict of the coroner's jury, which was presumably held within a short time after the death, and therefore while the circumstances were fresh and capable of accurate consideration. When one regards these facts there is but little justice in the decision, however correct it may have been legally.

In the case of Phillips vs. Life Insurance Co., 21 Am. Rep. 549, it was held that if the defendant was insane when he committed the act of selfdestruction, no responsibility could be attached to his act. But it was

also held that there was a reasonable doubt as to the proof of his having committed suicide. The facts were, that he retired to bed, and about 1 o'clock A.M. a pistol shot was heard. The inmates of the house rushed in and found he was shot in the mouth and a pistol was lying on the floor near by. It was considered possible that an enemy might have shot him or that he might have done it accidentally. The burden of proof, of course, was on the insurers.

9. Our own view can be summed up in a few words. We do not think that the ordinary rules of criminal responsibility which are applied to the

insane should be considered adequate in these cases. The contract is a definite one, and it is never assumed that the individual, when he signed it, was anything but perfectly sane. What other contracts are avoided under similar circumstances? He assumed this contract knowingly and intelligently. It was understood by him that there was a proviso in it that the policy should be forfeited if he died by his own hand. It was reasonable for him and for any one else to suppose that this did not include death by accident under any circumstances. The only question left, then, is to construe what the term "accident" means. When an act

is done involuntarily and unintentionally, or by an individual who is not able to form an idea of the physical sequence of cause and effect with reference to this particular act, such an act could well be included under the term "accident."

In the language of the Supreme Court of Massachusetts, "If the death be by accident, by superior and overwhelming force, in the madness of delirium, or under any combination of circumstances from which it may be fairly inferred that the act of self-destruction was not the result of the will or intention of the party adapting means to the ends, and contemplating the physical nature and effects of the act, then it may be justly held to be a loss not excepted within the meaning of the proviso."

But it is said that an insane delusion or an irresistible impulse may be so marked as to preponderate over the rest of the intellect, so that the subject is no longer responsible for his acts. That is true, but if it leave him with sufficient intelligence to adapt means to ends and to know the result of a contemplated act, such a grade of irresponsibility certainly should not abrogate this contract, made in good faith while he was perfectly sane, and set up in its stead another contract of very different import. If the delusion or impulse is so marked that he no longer understands the physical nature of the act, then it might be called an accident, and as such would not be included within the proviso.

ACCIDENT INSURANCE AND BENEFIT ASSOCIATIONS

BY

CORTLANDT F. BISHOP, PH.D.

IN a treatise on medical jurisprudence it is necessary to consider but one branch of accident insurance, namely, that relating to the insurance. of human beings against casualty. From this point of view accident insurance is really a branch of life insurance, and is therefore to a certain extent governed by the same rules. The ordinary life policy grants relief in case of death, however caused, or in the event of the assured's reaching a certain age. Accident insurance, on the other hand, provides against loss arising from death or disability caused by violent and external means rather than by disease, the latter being particularly the province of insurance by beneficial societies.

The first question that presents itself is one of definition. What is an accident? The Supreme Court of Pennsylvania has declared that it is "an event that takes place without one's foresight or expectation, an event which proceeds from an unknown cause, or is an unusual effect of a known cause and therefore not expected." (North American Life and Accident Company vs. Burroughs, 69 Pennsylvania State, 43.) It will be noted that the word is used in its popular sense, the element of the unforeseen being always present.

A contract of accident insurance is not one of indemnity, for a person cannot be indemnified for the loss of life or limb as he can for the loss of a house or ship. The allowance for disabling injuries, though usually so called, is not really an indemnity, for in most policies it is limited to a certain fixed sum per week, always less than the wages or income of the assured. In one of the few known cases of accident insurance in the form of an indemnity contract, the Court of the Exchequer held that the insurer was bound to indemnify the assured for the costs of medical attendance and expenses to which he was put by the accident, and not for loss of time or profits. (Theobold vs. Railway Passenger's, etc., Company, 10 Exchequer, 45.) The modern form of policy is more convenient in that it does away with the necessity of going into the assured's private affairs.

The applicant for accident insurance is seldom, if ever, required to submit to a medical examination. His application is based on a warranty of the truth of certain facts concerning his condition. Among these are physical and mental soundness, correct and temperate habits, and entire freedom from fits or disorders of the brain. It is frequently stipulated that any medical adviser of the insurer shall be permitted as often as

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