The opinion of the court was delivered by
Collins, J.
It has been considered by some that benefit societies are sui generis as respects the payment of death benefits to dependents of their members, and that the uniform denial of the defence of unexcepted suicide in suits- to recover [276] on their benefit certificates is to be placed on grounds peculiar to the character of such societies. There is no doubt that such defence has never been allowed. Bac. Ben. Soc., § 337, and eases cited. But these societies have no such peculiar status. Their benefits stand on the footing of all death claims. I shall treat this case, therefore, as within the general range of life insurance. In the words of the author of a treatise on that subject, published in the year 1891: “If performance by an insurer is, in general terms, conditioned on the death of the insured, there seems no valid reason why death by committing suicide should not be included; and such is the general doctrine.” Cooke Life Ins., § 4-1. Contrary judicial dicta will be found in a few decisions in England and in this country, but no direct adverse adjudication until the Ritter case, hereinafter mentioned. The case of Supreme Commandery v. Ainsworth, 71 Ala. 436 (1882), is sometimes cited as such an adjudication, but on a careful reading of the report it is evident that the opinion of the court, declared by Chief Justice Brickell, with much ability, from his standpoint, was not necessary to the decision of the cause.
The application of the doctrine has always happened to be in cases where the insurance was effected for some designated beneficiary other than the insured; and to that extent no state court has departed from it, as will be seen on examination of the cases cited in the most recent publications. 3 Am. & Eng. Encycl. L. (2d ed.) 1016; Joyce Ins., § 2653; May Ins. (4th ed.), § 324, note a (1900); 4 Berrym. Ins. Dig. 1530, et seq. (1901).
It should be understood, of course, that I have not been speaking of insurance procured with the intention of committing suicide. That, all courts concede, is voidable, because of fraud.
The Ritter case arose in 1892, was decided in 1895 (70 Fed. Rep. 954; 28 U. S. App. 612) and affirmed by the United States Supreme Court in 1898. Ritter, Executor of Runk, v. Mutual Life Insurance Co. of New York, 169 U. S. 139.
There were several policies in suit — all alike in tenor, and [277] all payable to the insured, his executors, administrators and assigns. The real contracts, as evidenced by the applications for them, excepted death by suicide within two years — which time had not elapsed; but, by virtue of a statute of Pennsylvania, where the contracts were made, the trial court had ruled out the applications, because not attached to the policies, which themselves expressed no such exception. The proof was plenary that the insurance was procured with the intent to commit suicide, but as the trial court had expressly charged the jury that there could, in no case, be recovery if the insured had taken his own life designedly while of sound mind, the general question was necessarily involved. The decision was that because the verdict established that Runk, the insured, had committed suicide while sane, his executor could not recover. The Supreme Court, speaking through Mr. Justice Harlan, held (at p. 160) that the death of the insured, “if directly and intentionally caused by .himself, when in sound mind, was not a risk intended to be covered, or which could legally have been covered, by the policies in suit.”
Diligent research has led to a discovery of no other reported case directly adjudging that suicide will bar recovery upon a policy not excepting it in express terms (and not procured with the intention of committing suicide), except the later one of Hopkins v. North Western Life Insurance Co., 95 Fed. Rep. 729, where a United States Circuit Court, being bound by the Ritter case, extended, and, I think, logically extended, the bar against recovery to a policy taken out by the insured for the benefit of his wife. The judgment was affirmed, however, upon other grounds. Hopkins v. North Western Life Insurance Co., 99 Id. 199; 40 C. C. A. 1.
I will consider, first, the proposition that sane suicide, though unexcepted in express terms, is not a risk intended to be covered by a life insurance contract.
In the early life policies death by suicide was excepted from the liability of the insurer, and in some cases this was expressed to be so, whether the insured was sane or insane at the time of the act. In a note to the case of Borradaile v. Hunter, 5 Man. & G. 639, decided in the year 1843, there [278] appears a list of the varying forms of the exceptions as appearing in the policies customarily issued by eighteen of the leading companies of England. Adjudication in this country — contrary to that in England — that the condition of sanity was implied in a general exception of suicide led to the common expression in subsequent policies of a contrary intent; later, as such stringency was seen to be unwise, it was relaxed, and still later, as the outcome of contests over sanity showed any exception to be futile, and as such an exception discouraged insurance, it came to be omitted altogether, or made of very short duration.
The history of insurance makes difficult the argument that the exception is not now expressed, because necessarily implied. The contrary has been the course of evolution in the analogous case of death resulting as a punishment for crime. In an early English decision (Fauntleroy’s Case, 4 Bligh (N. S.) 194 (1830), such a death was held to be an implied exception; but the effect of the raising of the question, not-' withstanding its decision favorably to the insurer, was to lead to the general introduction into policies of an express exception. Chief Justice Briekell, of Alabama, was alive to this situation when he expressed a strong, though not deterrent, reluctance “to introduce, by construction or implication, exceptions into such contracts, which usually contain special exceptions." Supreme Commandery v. Ainsworth, 71 Ala,. 436, 447.
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The opinion of the court was delivered by
Collins, J.
It has been considered by some that benefit societies are sui generis as respects the payment of death benefits to dependents of their members, and that the uniform denial of the defence of unexcepted suicide in suits- to recover [276] on their benefit certificates is to be placed on grounds peculiar to the character of such societies. There is no doubt that such defence has never been allowed. Bac. Ben. Soc., § 337, and eases cited. But these societies have no such peculiar status. Their benefits stand on the footing of all death claims. I shall treat this case, therefore, as within the general range of life insurance. In the words of the author of a treatise on that subject, published in the year 1891: “If performance by an insurer is, in general terms, conditioned on the death of the insured, there seems no valid reason why death by committing suicide should not be included; and such is the general doctrine.” Cooke Life Ins., § 4-1. Contrary judicial dicta will be found in a few decisions in England and in this country, but no direct adverse adjudication until the Ritter case, hereinafter mentioned. The case of Supreme Commandery v. Ainsworth, 71 Ala. 436 (1882), is sometimes cited as such an adjudication, but on a careful reading of the report it is evident that the opinion of the court, declared by Chief Justice Brickell, with much ability, from his standpoint, was not necessary to the decision of the cause.
The application of the doctrine has always happened to be in cases where the insurance was effected for some designated beneficiary other than the insured; and to that extent no state court has departed from it, as will be seen on examination of the cases cited in the most recent publications. 3 Am. & Eng. Encycl. L. (2d ed.) 1016; Joyce Ins., § 2653; May Ins. (4th ed.), § 324, note a (1900); 4 Berrym. Ins. Dig. 1530, et seq. (1901).
It should be understood, of course, that I have not been speaking of insurance procured with the intention of committing suicide. That, all courts concede, is voidable, because of fraud.
The Ritter case arose in 1892, was decided in 1895 (70 Fed. Rep. 954; 28 U. S. App. 612) and affirmed by the United States Supreme Court in 1898. Ritter, Executor of Runk, v. Mutual Life Insurance Co. of New York, 169 U. S. 139.
There were several policies in suit — all alike in tenor, and [277] all payable to the insured, his executors, administrators and assigns. The real contracts, as evidenced by the applications for them, excepted death by suicide within two years — which time had not elapsed; but, by virtue of a statute of Pennsylvania, where the contracts were made, the trial court had ruled out the applications, because not attached to the policies, which themselves expressed no such exception. The proof was plenary that the insurance was procured with the intent to commit suicide, but as the trial court had expressly charged the jury that there could, in no case, be recovery if the insured had taken his own life designedly while of sound mind, the general question was necessarily involved. The decision was that because the verdict established that Runk, the insured, had committed suicide while sane, his executor could not recover. The Supreme Court, speaking through Mr. Justice Harlan, held (at p. 160) that the death of the insured, “if directly and intentionally caused by .himself, when in sound mind, was not a risk intended to be covered, or which could legally have been covered, by the policies in suit.”
Diligent research has led to a discovery of no other reported case directly adjudging that suicide will bar recovery upon a policy not excepting it in express terms (and not procured with the intention of committing suicide), except the later one of Hopkins v. North Western Life Insurance Co., 95 Fed. Rep. 729, where a United States Circuit Court, being bound by the Ritter case, extended, and, I think, logically extended, the bar against recovery to a policy taken out by the insured for the benefit of his wife. The judgment was affirmed, however, upon other grounds. Hopkins v. North Western Life Insurance Co., 99 Id. 199; 40 C. C. A. 1.
I will consider, first, the proposition that sane suicide, though unexcepted in express terms, is not a risk intended to be covered by a life insurance contract.
In the early life policies death by suicide was excepted from the liability of the insurer, and in some cases this was expressed to be so, whether the insured was sane or insane at the time of the act. In a note to the case of Borradaile v. Hunter, 5 Man. & G. 639, decided in the year 1843, there [278] appears a list of the varying forms of the exceptions as appearing in the policies customarily issued by eighteen of the leading companies of England. Adjudication in this country — contrary to that in England — that the condition of sanity was implied in a general exception of suicide led to the common expression in subsequent policies of a contrary intent; later, as such stringency was seen to be unwise, it was relaxed, and still later, as the outcome of contests over sanity showed any exception to be futile, and as such an exception discouraged insurance, it came to be omitted altogether, or made of very short duration.
The history of insurance makes difficult the argument that the exception is not now expressed, because necessarily implied. The contrary has been the course of evolution in the analogous case of death resulting as a punishment for crime. In an early English decision (Fauntleroy’s Case, 4 Bligh (N. S.) 194 (1830), such a death was held to be an implied exception; but the effect of the raising of the question, not-' withstanding its decision favorably to the insurer, was to lead to the general introduction into policies of an express exception. Chief Justice Briekell, of Alabama, was alive to this situation when he expressed a strong, though not deterrent, reluctance “to introduce, by construction or implication, exceptions into such contracts, which usually contain special exceptions." Supreme Commandery v. Ainsworth, 71 Ala,. 436, 447.
Of course, the question is an open one, and the views of so influential a tribunal as the Supreme Court of the United States deserve most careful consideration. The reason fbr implying the exception is thus stated by Justice Harlan (169 U. S. 153) : “In the case of fire insurance it is well settled that although a policy in the usual form indemnifying against loss by fire may cover a loss attributable merely to the negligence or carelessness of the insured, unaffected by fraud or design, it will not cover a destruction of the properly by the willful act of the assured himself in setting fire to it, not for the purpose of avoiding a peril of a worse kind, but with the intention of simply effecting its destruction. [279] Much more should it be held that it is not contemplated by a policy taken out by the person whose life is insured and stipulating for the payment of a named sum to himself, his executors, administrators or assigns, that the company should be liable if his death was intentionally caused by himself when in sound mind. When the policy is silent as to suicide, it is to be taken that the subject of insurance — that is, the life of the assured — shall not be intentionally and directly, with whatever motive, destroyed by him when in sound mind. To hold otherwise is to say that the occurrence of the event upon the happening of which the company undertook to pay was intended to be left to his option. This view is against the very essence of the contract.”
The conclusion stated is a plain non sequitur. Suicide is only one of many ways that may determine the event of death. Insurance rates are based upon an average expectancy of life, derived from experience tables embracing suicide as well as all other causes of mortality. Many intelligent persons believe that suicide self-evinces a morbid state of mind, and insurers, in a large volume of business, may well. offset the natural love of life against the infrequent impulse of self-destruction. The supposed analogy to other insurance is not new. In Moore v. Woolsey, 4 El. & B. 242, 254, Lord Campbell said, obiter: “If a man insures his life for a year and- commits suicide within the year, his executors cannot recover on a policy, as the owner of a ship who insures her for a year cannot recover on the policy if, within the year, he causes her to be sunk.” The reasoning is specious and the analogy is false. It is quite right that willful and unnecessary destruction of the subject of fire or marine insurance should, at the.same time, destroy the insurer’s liability. The courts, therefore, imply in such case an exception from the general terms of the contract, because that must have been intended. But the case of life insurance is not parallel. Strict insurance is indemnity. Voluntary and unnecessary destruction of the property insured is inconsistent with the basis of the contract; but the basis of that which, by a misnomer, is called insurance upon life is altogether different. [280] That is art arbitrary agreement to pay a fixed sum upon the happening of an inevitable event, to wit, the death of the insured, without regard to the value of his life or the loss sustained by the assured. That a contract of life insurance is not a contract of indemnity was decided in the Exchequer Chamber in 1854. Dalby v. India and London Life Assurance Co., 15 C. B. 365, overruling Godsall v. Boldero, 9 East 72. There is no force in any argument derived from contracts of indemnity. Another reason, not expressly stated by Justice Harlan, but frequently assigned in judicial dicta for the implication declared by him, is that, without it, the insured would be deriving a benefit from his own wrongful act which will never be presumed to be within the intention of contracting parties. For example, recovery on a life insurance policy assigned by the insured to his creditor, who after-wards murdered him, has rightfully been denied. New York Mutual Insurance Co. v. Armstrong, 117 U. S. 59. Granting the inherent wrongfulness of suicide — which is matter for the moralist rather than the judge — this doctrine fails when applied thereto. No one can in this world derive a benefit from his own death. By that final event all earthly profit ends for him to whom it comes. He is for this life equally beyond gain and loss and, as to him, the rules that govern mundane intercourse become no longer applicable. Those who derive the benefit will have done no wrong. But it is said that suicide is a fraud on the insurer. To procure insurance with intent to commit suicide- is a fraud on the insurer that should defeat recovery at the option of the insurer; and, with all the incidents of a rescission, will avoid the contract, even as against beneficiaries or assignees. Smith v. National Benefit Society, 123 N. Y. 85. But to argue that suicide, not previously intended, is such a fraud as to defeat recovery is to beg the very question of what is the contract; and the argument assumes that insurance rates are fixed upon a basis excluding death by suicide,-while, as we have seen, the contrary must be the case, for the experience tables include all forms of death. Moreover, it would be next to impossible to fasten the fraudulent intent. The motives for suicide are difficult [281] to fathom, and are usually complex. In the ease in hand Dr. Campbell doubtless took his life through overwhelming chagrin due to arrest on a criminal charge. It is highly improbable that he thought at all of his insurance. To submit to a jury in each case the intent of the act would be practically fruitless. A general imperative rule in all cases must be established, and such seems to be the view of Justice Harlan, for he says that intentional self-destruction, with whatever motive, is impliedly excepted from the contract.
As a mere matter of construction it is of no importance what rule is to govern future contracts; but, in view of the historical aspect of the subject, the reading into contracts of life insurance this unexpressed exception will be sure to work great hardship. Many policies are being carried by creditors, or others interested, without a formal assignment, or the possibility of compelling one, except by consent of the insurer. These persons have rightly felt secure against recklessness or malignity extending even to suicide, and their investments should not be imperiled.
Lastly to be considered is the proposition that intentional suicide, when in sound mind, is not a risk which can legally be covered by insurance. This rests upon a postulated public policy. Justice Harlan says: “A contract, the tendency of which is to endanger the public interests, or injuriously affect the public good, or which is subversive of sound morality, ought never to receive the sanction of a court of justice or be made the foundation of its judgment. If, therefore, a policy (taken out by a person whose life is insured and in which the sum named is made payable to himself, his executors, administrators or assigns) expressly provided for the payment of the sum stipulated when or if the assured, in sound mind, took his own life, the contract, even if not prohibited by statute, would be held to be against public policy, in that it tempted or encouraged the assured to commit suicide in order to make provision for those dependent upon him or to whom he was indebted.” We are not concerned with an express contract to pay in case of suicide, but with a normal life insurance policy. Payment is to be made upon [282] the event of death, and the risk of death by suicide, as applied to the volume of insurance; is almost infinitesimal. The real question is whether it is against sound public policy for the insurer to assume the risk.
It is urged that parties may not contract for even a possible obligation resting on criminality. Doubtless such is the law. Faunlleroy’s Case, ubi supra, rests upon that principle, and it has recent illustration in the State of Massachusetts, where the Supreme Court denied insurance because the .death of an insured woman resulted from a criminal abortion. Hatch v. Mutual Life Insurance Co., 120 Mass. 550. But suicide is not criminal in New Jersey. Punishment is of the essence of crime, and suicide is not punishable here. Blaekstone defines a crime or misdemeanor to be “an act committed or omitted in violation of a public law either forbidding or commanding it.” 4 Bl. Com. 5. A recent writer more tersely says: “A crime is an act of omission or commission punishable as an offence against the state.” McClain Crim. L., § 4. At common law suicide was both criminal and felonioiis, although the punishment, except that of anticipatory dread, was, of necessity, visited upon the innocent, unless insensate clay can be said to have been punished by the burial in the highway and the driven stake. But in this country, generally, there is neither forfeiture of goods nor other penalty attached to suicide, which is, therefore, “little more than the shadow of a crime.” Patterson v. National Premium Mutual Life Insurance Co., 100 Wis. 118. That case decides that suicide does not fall within the usual exception in a life insurance policy of death resulting from a violation of law. The opinion of Mr. Justice Winslow well merits study on all the phases of the subject now sub judice. It is a model of terse, logical reasoning, but like most judicial utterances since the Ritter case — which is evidently disapproved — it is confined to eases where the insurance is payable to a beneficiary. In Hew York also it has been held that death by suicide does not result from violation of law, although by an exclusive penal code an unsuccessful attempt to commit suicide is there a crime, while suicide is not. Darrow v. Society, &c., 116 N. Y. 537.
[283] In New Jersey neither suicide nor attempt to commit suicide has, since 1796 at least, been criminal. This results from the enactment in that year that no conviction or judgment for any offence against the state shall make or work forfeiture of estate. Pai. L., p. 221, § 78, continued to the latest revision of our Criminal Procedure act. Pamph. L. 1898, p. 919, § 153.
As to the abstract immorality of suicide generally, opinions may differ; but all will admit that in some cases it is ethically defensible. Else how could a man “lay down his life for his friend?” Suicide may be self-sacrifice, as when a woman slays herself to save her honor. Sometimes self-destruction, humanly speaking, is excusable, as when a man curtails by weeks or months the agony of an incurable disease. It will not do to resort to the argument that in such cases there is no “felonious intent.” As to direct suicide, all that the common law required to make one a felo de se was that he should be of years of discretion, and in his senses^and should mean to kill himself. 4 Bl. Com. 189; Rale P. C. 411. Extenuation could only be considered by the king, who would “execute judgment in mercy.” Justice Harlan has not yielded to this argument, for “with whatever motive” self-destruction is accomplished, it, in his view, defeats recovery. Inquiry into an intent — formed after procuring insurance — to defraud the insurer, by suicide, has seemed to me impracticable. Inquiry into any other evil intent seems just as impracticable. On whom would rest the burden of proof, and how could complex motives be unraveled? Some general rule must control this question of public policy. Cases cannot be individualized.
As to the public good requiring the discouragement of suicide, there may be also two opinions. The paternal theory of government does not here prevail. The common law condemned suicide, according to Hale and Blackstone, ubi supra, not only for religious reasons, but for the temporal one that the king has an interest in the preservation of all his subjects — and doubtless the same is true of an organized commonwealth and its citizens; but I cannot see that the public good is more concerned to prolong a life that may be worth[284] less to the public than to secure to creditors their just demands, or to afford a maintenance to wife and children. Insurers may guard their interests in their contracts. I know no public policy more useful than that which holds contractors to performance.
That opinions of what is sound public policy upon this subject are not all alike is shown by that which has been declared in the great State of Missouri by its legislature. Por many years no defence of suicide in a suit to collect life insurance has been permitted, unless it is shown to the satisfaction of the court or jury at the trial that the insured contemplated suicide at the time of application for the policy, and any contrary provision in a policy is made void. Rev. Stat. (Mo.) 1889, § 5855.
If it be public policy to interfere with contracts in order to discourage suicide, then ought the contract of a creditor insuring the life of his debtor, or a wife insuring the life of her husband, to be defeated by the suicide of the insured, for the same motive of self-destruction for the benefit of the assured will be impelling in such cases as in a case where the contract is directly with the insured; yet it has never been suggested that one having an insurable interest in another’s life may not, at his own cost, himself contract insurance on that life, or take an assignment of an existing policy, without the risk of forfeiture by the suicide of the insured. Indeed, it has been held otherwise, even in England, where suicide is criminal. Cook v. Black, 1 Hare 390; Moore v. Woolsey, ubi supra. The fact that the insured pays the premiums and purchases insurance for a designated beneficiary, or for the benefit of his estate, can make no difference in his mental attitude. He can gain nothing by his death, and normally his estate will go either to his creditors or to his widow and next of kin. I see no sensible reason to affirm the contract in one case and disallow it in the other.
I have said that no adjudged case has permitted suicide as a defence against a beneficiary other than the insured. This is true, with one exception, even where the decision in the Ritter case has been recognized as sound or controlling. [285] Mr. Justice Harlan himself was very careful to go no farther than the ease required. The exception to which I have alluded is the Hopkins case, above cited, but, to my mind, the extension in that case was logical. What difference does it make whether a man contracting insurance designates -in the contract the beneficiary, or leaves that designation to the law, or his last will and testament? The contract is with him, and it is no more consistent with public policy that he should be allowed to contract that his suicide should not forfeit the right of a beneficiary, named in the policy to receive the insurance money, than that he should be allowed to contract that such suicide should not forfeit the right of those who otherwise would receive it as creditors, distributees or legatees of his estate. The decisions, since the Ritter case, denying suicide as a defence to silent policies, must, logically, either reprobate that case or distinguish it only on the ground that, as against a beneficiary named, the exception of the death of the insured by suicide cannot be constructively implied.
I conclude that in no case should the suicide of an insured person defeat recovery upon a contract of life insurance not procured by him with the intention of committing suicide, unless the contract so .provides in express terms.
Presumably the contract in this cáse was consummated in Hew Jersey, but if we look to Maryland, the state of the defendant’s incorporation, for the law which is to govern, it will be found no different. In a very recent decision of the Court of Appeals of that state, in a controversy with this same defendant, after full consideration of both the grounds of objection to recovery that I have been discussing, the same conclusion, and for substantially the same reasons, has been reached. Supreme Conclave Improved Order of Heptasophs v. Miles, 48 Atl. Rep. 845.
The direction of verdict for plaintiff was correct, and the judgment is affirmed.