The opinions were filed July 23, 1901, but remittitur held up on petition for rehearing before Court en banc until
November 29, 1901. The first opinion was delivered by
This action was upon a benefit certificate issued by defendant in favor of plaintiff upon the life of her husband, who died while a member of said order in good standing. The defense was that the insured life, A. L. Latimer, came to his death by his own hand or act, which rendered the certificate void. The jury found for the defendant. The certificate contained this provision: "If the member holding this certificate * * * should die * * * by his own hand or act, whether sane or insane, or by the hands of the beneficiary or beneficiaries named herein, except by accident * * * this certificate shall be null and void,c."
1. The first question presented by plaintiff's appeal is whether said provision is void, as against public policy and for want of mutuality. We think the provision is not invalid on either ground. The question is not whether an insane person ought to be held liable for his acts, but whether the death was one of the risks assumed by the insurer in the contract made with the insured when sane. We see no reason, on grounds of public policy, why the parties to an insurance contract may not stipulate what particular risk is assumed, or may not limit liability with respect to a specified hazard. Bigelow v. Ins. Co.,93 U.S. 284.
2. The next question is upon the construction of the policy. In response to defendant's request, the Court instructed the jury, "If you find from the evidence in this case that the assured, Arthur Lee Latimer, did die by his own hand or act, then, in that event, plaintiff cannot recover in this action," and the jury were further instructed in the language of defendant's request as follows: "It is entirely immaterial in this case whether Arthur Lee Latimer, the assured, was sane or insane at the time of his death; under the provisions of law and the benefit certificate sued upon in this case, if he died by his own hand or act, the defendant is absolved from liability. And the fact, if it be a fact, that he was insane at the time of his death would not operate to change the rule." In this connection we state that the Court refused the plaintiff's requests as follows: "In order to sustain the defendant's allegation that the policy of insurance was avoided by the deceased causing his death by his own hand or act, it is necessary for the defendant to convince the jury by a preponderance of the evidence * * * 2. That the killing was not the result of an accident, but was caused by the deceased's own act, and was intentional. 3. That if the deceased's death was caused by his own act, he understood at the time of self-destruction the physical nature of his act." Plaintiff's fifth request was also refused, which was as follows: "If the jury are convinced by a preponderance of the evidence that the deceased's death was caused by his own hand or act, but that he did not understand the physical nature of his act at the time, the defense fails, and the jury must find for the plaintiff." The plaintiff's sixth request was also refused, which was to the effect that such provision of the policy would not be infracted by the unintentional taking of his life by the insured.
We think the charge, especially when considered in the light of the requests which were refused, was erroneous and misleading. As we construe the policy, it would not be avoided by an accidental or unintentional death by the insured's own hand or act. Under the maxim, noscuntur a sociis, the phrase, "except by accident," qualifies the words, "die by his own hand or act, sane or insane." The word accident, when applied to human action, means something done without design or intention. It is, therefore, manifest that if the insured at the time of self-destruction was so insane as not to understand the physical nature and consequences of his act, he was incapable of intentional self-destruction, and death by one's own hand under such circumstances would fall under this class of accidents. But the jury were instructed that if the insured died by his own hand or act, it was entirely immaterial whether he was at the time sane or insane. This took from the jury a matter which they ought to have decided, viz: whether, if the insured was insane at the time of his death, his insanity was such as to negative an intention to take his own life. If against this view it be suggested that there was no evidence of such degree of insanity as to negative an intent to take his own life, and, therefore, no occasion to charge in reference to such degree of insanity, it is sufficient to say that the defendant offered evidence tending to show insanity, and that made it the duty of the jury to determine the degree of insanity under proper instruction, in order to ascertain whether if there was self-destruction it was intentional. It is argued for respondent that the language, "die by his own hand or act," as used by the Court in the charge to the jury, means intentional self-destruction, and that, therefore, the jury were properly instructed, within the meaning of the policy. But while such is the legal import of the words quoted, yet, in view of the whole charge, what was said and what was refused, we are convinced that the jury received the impression that the policy was avoided if the insured died by his own hand or act, whether intentional or not.
The authorities generally support the view that such a policy is not avoided by accidental or unintentional self-destruction; and that if the insured at the time of dying by his own hand was so insane as not to apprehend the physical nature and consequences of his act, such death would be protected
by the policy. I. May on Ins., 3d ed., p. 629; Ins.Co. v. Terry, 15 Wall, 580; Ins. Co. v. Rodel, 95 U.S. 232;Bigelow v. Insurance Co., 93 U.S. 284. In this last mentioned case the Court said: "Nothing can be clearer than that the words `sane or insane' were introduced for the purpose of excepting from the operation of the policy any intended self-destruction, whether the assured was of sound mind or in a state of insanity." In the case of Streeter v.Western Ins. Co., 65 Mich., 199, 8 Am. St. Rep., the Court, considering a policy containing the words, "die by his own hand, sane or insane," 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." In the case of Adkins v. Columbia Ins. Co., 70 Mo., 27, 35
Am.Rep., 410, construing a policy containing the words, "die by his own act and intention, whether sane or insane," said that the words, "by his own act and intention," were the equivalent of the words "by his own hand;" and approving the rule laid down in the case of Bigelow v. Ins. Co., supra
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The opinions were filed July 23, 1901, but remittitur held up on petition for rehearing before Court en banc until
November 29, 1901. The first opinion was delivered by
This action was upon a benefit certificate issued by defendant in favor of plaintiff upon the life of her husband, who died while a member of said order in good standing. The defense was that the insured life, A. L. Latimer, came to his death by his own hand or act, which rendered the certificate void. The jury found for the defendant. The certificate contained this provision: "If the member holding this certificate * * * should die * * * by his own hand or act, whether sane or insane, or by the hands of the beneficiary or beneficiaries named herein, except by accident * * * this certificate shall be null and void,c."
1. The first question presented by plaintiff's appeal is whether said provision is void, as against public policy and for want of mutuality. We think the provision is not invalid on either ground. The question is not whether an insane person ought to be held liable for his acts, but whether the death was one of the risks assumed by the insurer in the contract made with the insured when sane. We see no reason, on grounds of public policy, why the parties to an insurance contract may not stipulate what particular risk is assumed, or may not limit liability with respect to a specified hazard. Bigelow v. Ins. Co.,93 U.S. 284.
2. The next question is upon the construction of the policy. In response to defendant's request, the Court instructed the jury, "If you find from the evidence in this case that the assured, Arthur Lee Latimer, did die by his own hand or act, then, in that event, plaintiff cannot recover in this action," and the jury were further instructed in the language of defendant's request as follows: "It is entirely immaterial in this case whether Arthur Lee Latimer, the assured, was sane or insane at the time of his death; under the provisions of law and the benefit certificate sued upon in this case, if he died by his own hand or act, the defendant is absolved from liability. And the fact, if it be a fact, that he was insane at the time of his death would not operate to change the rule." In this connection we state that the Court refused the plaintiff's requests as follows: "In order to sustain the defendant's allegation that the policy of insurance was avoided by the deceased causing his death by his own hand or act, it is necessary for the defendant to convince the jury by a preponderance of the evidence * * * 2. That the killing was not the result of an accident, but was caused by the deceased's own act, and was intentional. 3. That if the deceased's death was caused by his own act, he understood at the time of self-destruction the physical nature of his act." Plaintiff's fifth request was also refused, which was as follows: "If the jury are convinced by a preponderance of the evidence that the deceased's death was caused by his own hand or act, but that he did not understand the physical nature of his act at the time, the defense fails, and the jury must find for the plaintiff." The plaintiff's sixth request was also refused, which was to the effect that such provision of the policy would not be infracted by the unintentional taking of his life by the insured.
We think the charge, especially when considered in the light of the requests which were refused, was erroneous and misleading. As we construe the policy, it would not be avoided by an accidental or unintentional death by the insured's own hand or act. Under the maxim, noscuntur a sociis, the phrase, "except by accident," qualifies the words, "die by his own hand or act, sane or insane." The word accident, when applied to human action, means something done without design or intention. It is, therefore, manifest that if the insured at the time of self-destruction was so insane as not to understand the physical nature and consequences of his act, he was incapable of intentional self-destruction, and death by one's own hand under such circumstances would fall under this class of accidents. But the jury were instructed that if the insured died by his own hand or act, it was entirely immaterial whether he was at the time sane or insane. This took from the jury a matter which they ought to have decided, viz: whether, if the insured was insane at the time of his death, his insanity was such as to negative an intention to take his own life. If against this view it be suggested that there was no evidence of such degree of insanity as to negative an intent to take his own life, and, therefore, no occasion to charge in reference to such degree of insanity, it is sufficient to say that the defendant offered evidence tending to show insanity, and that made it the duty of the jury to determine the degree of insanity under proper instruction, in order to ascertain whether if there was self-destruction it was intentional. It is argued for respondent that the language, "die by his own hand or act," as used by the Court in the charge to the jury, means intentional self-destruction, and that, therefore, the jury were properly instructed, within the meaning of the policy. But while such is the legal import of the words quoted, yet, in view of the whole charge, what was said and what was refused, we are convinced that the jury received the impression that the policy was avoided if the insured died by his own hand or act, whether intentional or not.
The authorities generally support the view that such a policy is not avoided by accidental or unintentional self-destruction; and that if the insured at the time of dying by his own hand was so insane as not to apprehend the physical nature and consequences of his act, such death would be protected
by the policy. I. May on Ins., 3d ed., p. 629; Ins.Co. v. Terry, 15 Wall, 580; Ins. Co. v. Rodel, 95 U.S. 232;Bigelow v. Insurance Co., 93 U.S. 284. In this last mentioned case the Court said: "Nothing can be clearer than that the words `sane or insane' were introduced for the purpose of excepting from the operation of the policy any intended self-destruction, whether the assured was of sound mind or in a state of insanity." In the case of Streeter v.Western Ins. Co., 65 Mich., 199, 8 Am. St. Rep., the Court, considering a policy containing the words, "die by his own hand, sane or insane," 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." In the case of Adkins v. Columbia Ins. Co., 70 Mo., 27, 35
Am.Rep., 410, construing a policy containing the words, "die by his own act and intention, whether sane or insane," said that the words, "by his own act and intention," were the equivalent of the words "by his own hand;" and approving the rule laid down in the case of Bigelow v. Ins. Co., supra, held that the provision embraced an intentional self-destruction by an insane man, provided he was conscious at the time of the physical nature and consequences of his act and intended to destroy his life, although he was not conscious of the moral quality or consequences of the act. Other cases might be referred to, but these mentioned, with the cases therein cited, will be sufficient. The contrary view is illustrative by the case of Billings v. Ins. Co., 17 L.R.A., 89; but we are satisfied that the view we have taken is the better view in reason and accords with the weight of authority.
3. The defense of intentional self-destruction to a policy providing a forfeiture for that cause is an affirmative defense, and the insurer seeking to avail thereof must specifically plead it and establish it by the preponderance of the evidence. Copeland v. Assurance Co., 43 S.C. 26. Barring the objection to the charge already noticed, we think that the charge, considered as a whole, properly
placed the burden of proof, and that the exception in this regard must be overruled. In this connection appellant complains of the following charge: "Your verdict in this case must be based upon the evidence, and if there is credible evidence establishing the defense of suicide by preponderance of the evidence, and there is no evidence from which the fact of death by accident can reasonably be inferred, then you are not at liberty to suppose death resulted from accident." In reference to this matter the jury were also instructed: "The burden is upon the plaintiff to prove her case by the preponderance of evidence. I charge you that if the deceased was a member in good standing of the Woodmen of the World, the death raises a prima facie case. Now, the presumption is against suicide; but if it is established by the preponderance of the testimony, then the defendant has done all that it is required to; but if the testimony established the allegations of the answer, then your verdict should be for the defendant; but if the testimony in the whole case fails to establish the defense as set up by the defendant, then, of course, your verdict should be for the plaintiff." The charge did not place upon plaintiff the burden of showing that the insured's death was not suicide or intentional self-destruction; nor was the charge in any sense a charge in respect to matters of fact as complained.
4. The remaining exceptions proper to notice relate to the introduction of evidence. The eleventh exception assigns error in permitting a leading question. Such question must be generally left to the discretion of the Circuit Court.
The twelfth exception, in effect, complains that it was error to reject testimony on the ground of irrelevancy, because other irrelevant testimony had been allowed. These exceptions must be overruled.
Under the views above stated, I think the judgment of the Circuit Court should be reversed and a new trial ordered; but inasmuch as the Court is equally divided upon this question, the judgment of the Circuit Court stands affirmed.
MR. JUSTICE POPE concurs.
MR. JUSTICE GARY concurs in the dissenting opinion ofthe Chief Justice.