Pinney, J.
1. When this case was here on a former occasion [82 Wis. 255] the judgment of the circuit court was reversed because that court, upon the proofs as they then stood, withdrew from the consideration of the jury the question whether Bachmeyer was insane or not when he took the poison that caused his death, for the reason that this fact, if it existed, had an important bearing on the question whether he “ died by his own hand,” within the meaning of the policy. The provision of the policy is that “ death of the member by his own hand, whether voluntary or involuntary, sane or insane at the time, is not a risk assumed by the association in this contract; ” and it was held, in substance, that if the assured was sane at the time, and took the drug by mistake or unintentionally, there might be a recovery. Pierce v. Travelers' L. Ins. Co. 34 Wis. 389; Penfold v. Universal L. Ins. Co. 85 N. Y. 317. Proof of his insanity would rebut any presumption that might otherwise arise against suicide, or that he took the drug by mistake or unintentionally. And it was held that the sworn statement of the plaintiff in the proofs of death that the assured “died by his own hand while temporarily insane” was evidence as against her to prove his insanity, even in the absence of other evidence, but that an honest and unintentional mistake on her part in this respect might be shown, and that the statement would not necessarily prevent a recovery. That the assured died in consequence of morphine poison which he had taken was not, on the last trial, a matter of real question. The important issues were: (1) Whether [335]*335the statement in the proofs as to the insanity of the assured was the result of an honest and unintentional mistake; (2) whether, at the time the assured took the poison in question, he was sane or insane; (3) whether it was taken unintentionally or by mistake.
Insanity and suicide are not primary or concrete facts, but conclusions of fact drawn from primary facts and circumstances, so that it may well be that a party might fairly and innocently arrive at an erroneous conclusion in respect to such questions. In view of the evidence produced at the trial, we think it was properly left to the jury to say whether the plaintiff was honestly and innocently mistaken in making the statement contained in her proofs, but not that it was “ ill advised,” for this, in the sense that it wTas unwise, injudicious, or imprudent, would be misleading. She testified at the trial that she had not learned any new facts bearing on the truth of the statement since the former trial, or since she made it. Nevertheless we think that if she made a mistake, or drew a wrong inference from the facts or the opinions of others as to the insanity of the assured, she ought not to be precluded from having her case submitted to the jury under proper instructions as to the real merits of her claim. Her claim is that she made the statement upon the strength of what the doctors and others told her; and on the other hand the doctors testify, in substance, that their conclusions as to the sanity of the assured were based upon statements made to them by the plaintiff, taken in connection, of course, -with the obvious fact that the assured had taken morphine in sufficient quantity to cause his death. It was held on the former appeal that there was other testimony than the statement in the proofs of death tending to prove the insanity of Bach-meyer at the time, and there is now, in addition thereto, the testimony of the attending physician, Dr. Boorse, and the expert testimony of Dr. Hay and Dr. Seaman, to the same [336]*336effect; and on the part of the plaintiff the testimony of two acquaintances of the deceased, tending in some degree to show his sanity. With these exceptions the testimony is, in its general effect, in substance the same as on the former trial.
2. The objection to the letter offered in evidence, written by the plaintiff’s attorney, Mr. Roehr, was properly sustained. In so far as it had any material bearing upon the case, the statements which it contained consisted of his opinions, and facts within his knowledge, which should have been testified to by him the same as by any other witness, although he was attorney in fact for the plaintiff when he wrote the letter to the defendant. In all other respects it was to the same effect as the proofs of death, and could have added nothing to their force or effect.
3. The evidence was clearly sufficient to require the question of the sanity of the assured, as bearing upon the question of suicide, to be submitted to the jury, as well as the question whether he took the poison unintentionally or by mistake and without any intention to terminate his life, in view of the presumption against suicide in the case of a sane person; and some evidence of a somewhat indecisive nature was given, bearing upon that question. The mere fact, however, shown in evidence, that morphine is not easily distinguished from quinine by one not an expert, affords ground for little, if any, more than conjecture merely that a drug clerk may have given the assured morphine for quinine by mistake. But, as the assured purchased ginger root that day, it is probable that he visited a drug store. The effect of these considerations was, we think, unduly increased by the court inadvertently stating in the charge that the assured “ went away from his house, it would seem from his own statement made at the time, partly for the purpose of procuring quinine.” The record wholly fails to show that any such evidence was given. Other errors and [337]*337omissions in the statement of facts in évidence which the court made to the jury are compiained of as having a tendency, under such sanction, to improperly impress the jury; and among these, as bearing on the question of suicide, “ is the fact that the assured had no opportunity, that we know of, to take any poison after he had gone and laid down in the bedroom,” while the evidence shows clearly that the situation was such that if he had the poison about his person he might and could have taken it if he chose, without attracting observation.
But it is not material to particularize or dwell on minor points, in view of the conclusion at which we have arrived, that there must be a new'trial for error of the court in its charge to the jury, prejudicial to the defendant, in respect to the degree or quantity of proof required to show that the assured did not take the morphine poison by mistake or accident, without intent to terminate his life. After stating that, if the assured was sane when he took it, the mere fact that he died from the effects of the poisoning would not overcome the presumption against suicide, it was left to the jury to say if he was in his right mind, and whether there were “ any other facts which point irresistibly to the conclusion of suicide;” that if “he was sane and in his right mind, you will have to scan the evidence very closely, and you will have to overcome many doubts and a strong presumption of the law, before you can decide in favor of the theory of suicide.” A preponderance or greater weight of evidence was sufficient to establish this issue in favor of the defendant. The instruction that the facts to establish suicide must be irresistible facts,— that is to say, facts that could not possibly be opposed or resisted,— implies that in the absence of such a showing the issue of suicide should be found for the plaintiff, and that the greater weight of evidence would not suffice to establish the contrary. Again, the presumption in such a [338]
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Pinney, J.
1. When this case was here on a former occasion [82 Wis. 255] the judgment of the circuit court was reversed because that court, upon the proofs as they then stood, withdrew from the consideration of the jury the question whether Bachmeyer was insane or not when he took the poison that caused his death, for the reason that this fact, if it existed, had an important bearing on the question whether he “ died by his own hand,” within the meaning of the policy. The provision of the policy is that “ death of the member by his own hand, whether voluntary or involuntary, sane or insane at the time, is not a risk assumed by the association in this contract; ” and it was held, in substance, that if the assured was sane at the time, and took the drug by mistake or unintentionally, there might be a recovery. Pierce v. Travelers' L. Ins. Co. 34 Wis. 389; Penfold v. Universal L. Ins. Co. 85 N. Y. 317. Proof of his insanity would rebut any presumption that might otherwise arise against suicide, or that he took the drug by mistake or unintentionally. And it was held that the sworn statement of the plaintiff in the proofs of death that the assured “died by his own hand while temporarily insane” was evidence as against her to prove his insanity, even in the absence of other evidence, but that an honest and unintentional mistake on her part in this respect might be shown, and that the statement would not necessarily prevent a recovery. That the assured died in consequence of morphine poison which he had taken was not, on the last trial, a matter of real question. The important issues were: (1) Whether [335]*335the statement in the proofs as to the insanity of the assured was the result of an honest and unintentional mistake; (2) whether, at the time the assured took the poison in question, he was sane or insane; (3) whether it was taken unintentionally or by mistake.
Insanity and suicide are not primary or concrete facts, but conclusions of fact drawn from primary facts and circumstances, so that it may well be that a party might fairly and innocently arrive at an erroneous conclusion in respect to such questions. In view of the evidence produced at the trial, we think it was properly left to the jury to say whether the plaintiff was honestly and innocently mistaken in making the statement contained in her proofs, but not that it was “ ill advised,” for this, in the sense that it wTas unwise, injudicious, or imprudent, would be misleading. She testified at the trial that she had not learned any new facts bearing on the truth of the statement since the former trial, or since she made it. Nevertheless we think that if she made a mistake, or drew a wrong inference from the facts or the opinions of others as to the insanity of the assured, she ought not to be precluded from having her case submitted to the jury under proper instructions as to the real merits of her claim. Her claim is that she made the statement upon the strength of what the doctors and others told her; and on the other hand the doctors testify, in substance, that their conclusions as to the sanity of the assured were based upon statements made to them by the plaintiff, taken in connection, of course, -with the obvious fact that the assured had taken morphine in sufficient quantity to cause his death. It was held on the former appeal that there was other testimony than the statement in the proofs of death tending to prove the insanity of Bach-meyer at the time, and there is now, in addition thereto, the testimony of the attending physician, Dr. Boorse, and the expert testimony of Dr. Hay and Dr. Seaman, to the same [336]*336effect; and on the part of the plaintiff the testimony of two acquaintances of the deceased, tending in some degree to show his sanity. With these exceptions the testimony is, in its general effect, in substance the same as on the former trial.
2. The objection to the letter offered in evidence, written by the plaintiff’s attorney, Mr. Roehr, was properly sustained. In so far as it had any material bearing upon the case, the statements which it contained consisted of his opinions, and facts within his knowledge, which should have been testified to by him the same as by any other witness, although he was attorney in fact for the plaintiff when he wrote the letter to the defendant. In all other respects it was to the same effect as the proofs of death, and could have added nothing to their force or effect.
3. The evidence was clearly sufficient to require the question of the sanity of the assured, as bearing upon the question of suicide, to be submitted to the jury, as well as the question whether he took the poison unintentionally or by mistake and without any intention to terminate his life, in view of the presumption against suicide in the case of a sane person; and some evidence of a somewhat indecisive nature was given, bearing upon that question. The mere fact, however, shown in evidence, that morphine is not easily distinguished from quinine by one not an expert, affords ground for little, if any, more than conjecture merely that a drug clerk may have given the assured morphine for quinine by mistake. But, as the assured purchased ginger root that day, it is probable that he visited a drug store. The effect of these considerations was, we think, unduly increased by the court inadvertently stating in the charge that the assured “ went away from his house, it would seem from his own statement made at the time, partly for the purpose of procuring quinine.” The record wholly fails to show that any such evidence was given. Other errors and [337]*337omissions in the statement of facts in évidence which the court made to the jury are compiained of as having a tendency, under such sanction, to improperly impress the jury; and among these, as bearing on the question of suicide, “ is the fact that the assured had no opportunity, that we know of, to take any poison after he had gone and laid down in the bedroom,” while the evidence shows clearly that the situation was such that if he had the poison about his person he might and could have taken it if he chose, without attracting observation.
But it is not material to particularize or dwell on minor points, in view of the conclusion at which we have arrived, that there must be a new'trial for error of the court in its charge to the jury, prejudicial to the defendant, in respect to the degree or quantity of proof required to show that the assured did not take the morphine poison by mistake or accident, without intent to terminate his life. After stating that, if the assured was sane when he took it, the mere fact that he died from the effects of the poisoning would not overcome the presumption against suicide, it was left to the jury to say if he was in his right mind, and whether there were “ any other facts which point irresistibly to the conclusion of suicide;” that if “he was sane and in his right mind, you will have to scan the evidence very closely, and you will have to overcome many doubts and a strong presumption of the law, before you can decide in favor of the theory of suicide.” A preponderance or greater weight of evidence was sufficient to establish this issue in favor of the defendant. The instruction that the facts to establish suicide must be irresistible facts,— that is to say, facts that could not possibly be opposed or resisted,— implies that in the absence of such a showing the issue of suicide should be found for the plaintiff, and that the greater weight of evidence would not suffice to establish the contrary. Again, the presumption in such a [338]*338case against suicide is but a disputable presumption, and stands for the fact only until it is overcome by evidence. Preponderating evidence is all that is necessaiy to displace it. Lawson, Pres. Ev. 138, 139; Continental Ins. Co. v. Delpeuch, 82 Pa. St. 235. It was not correct to characterize the presumption as a strong one, any more than in a charge to characterize anjr particular fact as strong evidence of a conclusion sought to be established, for this would be an invasion of the province of the jury. Bigelow v. Doolittle, 36 Wis. 119; Rindskopf v. Myers, ante, p. 80. If it may be said that presumptions are not of uniform strength or weight, it is so, not as a matter of law, but by reason of the facts out of which they arise or with which they are met or opposed. In any such case the question is one of fact whether the evidence produced preponderates against and overcomes the presumption. The question is one of fact for the jury, and the duty of the court is fully performed when it declares the existence of the presumption and that it may be displaced or overcome by evidence in the case, the weight and effect of which is for their determination.
But a more serious objection exists to this instruction, namely, that the jury would have “to overcome many doubts,” as well as “ a strong presumption of the law,” before they could decide in favor of the theory of suicide. What kind of doubts are referred to? And if only reasonable doubts, it is certainly for the jury and not for the court to say whether they exist; and if such only are intended, the effect of the instruction is to require the jury to apply to the determination of this issue in a civil action the rule as to the weight and degree of evidence applicable only in criminal cases, in addition to overcoming the legal presumption.
There was sufficient evidence to go to the jury to show that the assured committed suicide, independent of the [339]*339statement contained in the proofs of death, and these erroneous instructions require a reversal of the judgment.
4. In view of the evidence, we think it was an inadequate presentation of the question of the insanity of the assured to leave it to the jury, in substance, to say whether the fact .that he had “conceived the idea of getting rid of his wife and marrying this young girl” was evidence of insanity, although it was left to the jury to say whether he evinced any other sign of insanity, and for them to determine what effect was to be given to the evidence of physicians and those acquainted with him, taken in connection with the further statements that “ there is a maxim abroad in the world which has acquired almost the force of law, that in matters of courtship and marriage there is no fool like an old fool; and whether or not this man was merely a foolish old man, or whether he was a crazy old man, was a question for the jury to determine at the outset;” and in this connection, in reference to the indecent advances or proposals made by the assured to the girl Clara, that, “ being' accused of it by her, in the presence of his wife, he sat still and read his newspaper and said nothing, being possibly of the opinion that the women could be relied on to do all the talking necessary on that occasion.” The evidence shows that this was, in.no proper sense, a matter of courtship and marriage, but that the conduct of the assured in seeking to turn away his wife of a quarter of a century, “ just as she stood,” as she expressed it, without anything, himself keeping all the property, was conduct o'f itself which the common judgment of the world would be likely to regard as irrational. ¥e are constrained to say that these remarks were singularly inappropriate to the subject and occasion, and ought not to have found place in a charge to a jury in relation to a serious controversy. Their tendency was to disparage and undervalue the defense, which, [340]*340so far as,we have been able to see, was made in entire good faith. While the mere fact that a man commits suicide does not raise a presumption of his insanity at the time, yet that fact, in connection with other evidence, is pertinent to the issue of insanity. Karow v. Continental Ins. Co. 57 Wis. 56. The instructions just noticed submitted, the determination of the material question of the insanity of the assured upon considerations apparently independent of the fact that he had taken the poisonous drug that had so speedily terminated his life, and in the main upon the so-called courtship and marriage aspect of the case.
It follows from these views that the judgment of the circuit .'court must be reversed.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.