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request, substituted as trustee in Nestell's stead. There was evidence tending to show that one object in having Broughton appointed was that a suit could be brought in his name in the United States court.
The defendant, having pleaded in bar a former judgment in an action brought against it upon the policy by Mrs. Ferguson, in October, 1876, in the court of common pleas for the city and county of New York, offered evidence by which it appeared that in such an action the death of Ferguson by hanging himself was proved, and the only question in controversy was whether, and how far, he was insane at the time of his death; and that upon the defendant's motion the court, in December, 1878, granted a nonsuit, because he was not shown to have been so insane as not to know the physical consequences of his act, and the decision was entered of record in this form : "Motion for nonsuit granted, and complaint dismissed; allowance, one hundred and fifty dollars to defendant, if further litigation be carried on by plaintiff.”
The defendant requested the circuit court to direct a verdict for the defendant, because the former judgment was a bar, and afterwards objected to the introduction by the plaintiff of evidence of the condition of Ferguson's mind at the time of his death, because that question had been tried and determined in the former action. The
court rightly denied the request, and overruled the objection. A judgment of nonsuit does not determine the rights of the parties, and is no bar to a new action. * Homer v. Brown, 16 How. 354. A trial upon which nothing was determined cannot support a plea of res adjudicata, or have any weight as evidence at another trial.
The defendant, at the close of the plaintiff's evidence in chief, and again at the close of all of the evidence in the case, moved to dismiss the action for want of jurisdiction, because Broughton had only a nominal interest, and the real controversy was between citizens of New York; and at the argument in this court contended that the action should be dismissed because the evidence showed that the plaintiff was made trustee for the purpose of bringing an action in the United States court, after Mrs. Ferguson had failed to recover in the state court, under the rule established by the recent decisions of the court of appeals in Van Zandt v. Mutual Benefit L. Ins. Co. 55 N. Y. 169, and Weed v. Same, 70 N. Y. 561.
But the case does not fall within the prohibition of the first section of the act of March 3, 1875, c. 137, that no circuit court shall have cognizance of any suit founded on contract, in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made; nor within the provision of the fifth section of the same act, authorizing the circuit court to dismiss a suit, upon being satisfied that it does not really and substantially involve a dispute or controversy properly within its jurisdiction, or that parties have been improperly or collusively made or joined for the purpose of creating a case cognizable by that court. 18 St. 470, 472; Williams v. Nottawa, 104 U. S. 209. Mrs. Ferguson, the assured and payee named in the policy, was herself a citizen of New Jersey, and as such, if no assignment had been made, might have sued the company in the circuit court of the United States; and Bromfield, a citizen of the same state, was appointed in the stead of the former trustee, a citizen of New York, not by Mrs. Ferguson's deed in pais, but by a court of competent jurisdiction. Under these circumstances the mere fact that one object in having him appointed was to enable a suit to be brought in the circuit court is not sufficient to require or justify the construction that he was improperly, and its cannot be pretended that he was collusively, made a plaintiff for the purpose of creating a case cognizable by that court. The question involved was not a question of local law, but of general jurisprudence, upon which Mrs. Ferguson, and Broughton, as her trustee, had a right to seek the independent judgment of a federal court. Railroad Co. v. Lockwood, 17 Wall. 357, 368; Mich. Cent. R. Co. v. Myrick, 107 U. S. 102; [S. C. 1 Sup. Ct. REP. 425;] Burge88 v. Seligman, 107 U. S. 20; [S. C. 2 Sup. Ct. Rep. 10.]
Several minor points suggested at the argument hardly present any question of law. The interrogatories put by the counsel for the plaintiff to the expert called by the defendants were clearly admissible on cross-examination for the purpose of testing the knowledge and accuracy of the witness, and require no special consideration. The instruction requested, that "the only legal test of insanity is delusion,” was in direct contradiction of the testimony of the experts called on each side, and could not properly be given as a rule of law. The court rightly refused to direct a verdict for the defendant, on the ground that there was no sufficient evidence to show that Ferguson was insane, or to render the defendant liable upon its contract. Without undertaking to recapitulate the evidence, it is sufficient to say that members of his family, and persons well acquainted with him in his business, testified that he was naturally of a lively, cheerful, sanguine disposition; that in 1874 he met with heavy losses in business, and his son died suddenly by falling from a window; that from that time forward there was a marked change in his demeanor; "he was always walking with his head bowed down, and a gloomy expression, and the entire vitality and cheerfulness which the man had before was gone;” “he was gloomy, dull, mopish ;” “he sat down in the office and moaned and would be gloomy there;” “he always complained of his head; he would say, "The trouble is here; it is all in my head, my head;'" that shortly before his death he had "a vacant expression in his face;" "he had a queer expression about his eyes; it was a sort of wild, unnatural expression;" “that kind of expression which the human face takes on when one is frightened; a far-off, glassy look, as though the mind was dwelling on nothing;' *that "he was very much changed, and was very excitable; he looked different, and had a wild expression; he staid a great deal by him.
self when he came home from business; he would go to his room and lie on his bed with his hat and overcoat on, and not come out to his meals." The experts called for the plaintiff testified that Ferguson was suffering from that kind of unsoundness of mind which they termed melancholia. There was clearly some evidence of insanity for the jury, and the question of its weight was for them, and not for the court. Ins. Co. v. Rodel, 95 U. 8. 232.
The remaining, and the most important, question in the case is whether a self-killing by an insane person, having sufficient mental capacity to understand the deadly nature and consequences of his act, but not its moral aspect and character, is a death by suicide, within the meaning of the policy. This is the very question that was presented to this court in 1872 in the case of Life Ins. Co. v. Terry, 15 Wall. 580. At that time there was a remarkable conflict of opinion in the courts of England, in the courts of the several states, and in the circuit courts of the United States, as to the true interpretation of such a condition. All the authorities agreed that the words “die by suicide” or “die by his own hand” did not cover every possible case in which a man took his own life, and could not be held to include the case of self-destruction in a blind frenzy or under an overwhelming insane impulse. Some courts and judges held that they included every case in which a man, sane or insane, voluntarily took his own life. Others were of opinion that any insane self-destruction was not within the condition."
•In Terry's Case, (the trial of which in the circuit court before Mr. Justice MILLER and Judge Dillon is reported in 1 Dill. 403,) it was admitted that the person whose life was insured died by poison, selfadministered; and the insurance company requested the court to instruct the jury-First, that if he destroyed his own life, and at the time of self-destruction had sufficient capacity to understand the nature of the act which he was about to commit, and the consequences which would result from it, the plaintiff could not recover on the policy; and, secondly, that if the self-destruction was intended by him, he having sufficient capacity at the time to understand the nature of the act which he was about to commit, and the consequences which would result from it, it was wholly immaterial that he was impelled thereto by insanity, which impaired his sense of moral responsibility, and rendered him to a certain extent irresponsible for his action. 15 Wall. 581. The circuit court declined to give either of the instruc
Borradaile v. Hunter, 5 Man. & G. 639; S. C. 5 Scott, N. R. 418; Dormay v. Borradaile, 10 Beav. 335; Schwabe v. Clift, 2 Car. & K. 134, and 3 C. B. 437; Stormont v. Waterloo Ins. Co. 1 Falc. & F. 22; Dufaur v. Professional Ins. Co. 25 Beav. 599, 602; Solicitors' Assurance Soc. v. Lamb, í Hem. & M. 716, and 2 De Gex, J. & S. 251; Breasted v. Farmers' Trust & Loan Co. 4 Hill, 73, and 8 N. Y. 299; Dean v. American Ins. Co. 4 Allen, 96; Cooper v. Massachusetts Ins. Co. 102 Mass. 227; Eastabrook v. Union Ins. Co. 54 Me. 224; Gove v. Farmers' Ins. Co. 48 N. H. 41; St. Louis Ins. Co. v. Graves, 6 Bush, 268 ; Nimick v. Mutual Life Ins. Co. 10 Amer. Law. Reg. (N. 8.) 101; Gay v. Union Ins. Co. 9 Blatchf. 0. C. 142; Terry v. Life Ins. Co. 1 Dill. 403.
tions requested, and instructed the jury in substantial accordance with the first of them only, saying:
“It devolves on the plaintiff to prove such insanity on the part of the decedent, existing at the time he took the poison, as will relieve the act of taking his own life from the effect which, by the general terms used in the policy, self-destruction was to have, namely, to avoid the policy. It is not every kind or degree of insanity which will so far excuse the party taking his own life as to make the company insuring liable. To do this, the act of self-destruction must have been the consequence of the insanity, and the mind of the decedent must have been so far deranged as to have made him incapable of using a rational judgment in regard to the act which he was committing. If he was impelled to the act an insane impulse, which the reason that left him did not enable him to resist, or if his reasoning powers were so far overthrown by his mental condition that he could not exercise his reasoning faculties on the act he was about to do, the company is liable. On the other hand, there is no presumption of law, prima facie or otherwise, that self-destruction arises from insanity; and if you believe from the evidence that thes decedent, although excited, or angry, or distressed in mind, formed the determination to take his own life, because, in the exercise of his usual reasoning faculties, he preferred death to life, then the company is not liable, because he died by his own hand within the meaning of the policy.” 15 Wall. 582.
The necessary effect of giving these instructions, after refusing to give the second instruction requested, was to rule that if the deceased intentionally took his own life, having sufficient mental capacity to understand the physical nature and consequences of his act, yet if he was impelled to the act by insanity, which impaired his sense of moral responsibility, the company was liable. That the ruling was so understood by this court is apparent by the opening sentences of its opinion on page 583, as well as by its conclusion, which, after a review of the conflicting authorities on the subject, was announced in these words: "We hold the rule on the question before us to be this: 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 impared 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." Pages 590, 591.
In Ins. Co. v. Rodel, 95 U. S. 232, the same rule was expressly reaffirmed. In that case the circuit court declined to instruct the jury that the plaintiff could not recover if the assured knew that the act which he committed would result in death, and deliberately did it for that purpose; and instead thereof, repeated to the jury the instructions of the circuit court in Terry's Case, and the conclusion of the opinion of this court in that case, as above quoted. This court, in
affirming the judgment, said: “This charge is in the very words of the charge sanctioned and approved by this court in the case of Life Ins. Co. v. Terry, 15 Wall. 580, including an explanatory clause of the opinion of the court in that case. We see no reason to modify the views expressed by us on that occasion." 95 U. S. 241.
The policies in the cases of Terry and of Rodel used the words “die by his own hand," instead of which the policy before us has the words "die by suicide." But, for the purposes of this contract, as was observed in Terry's Case, 15 Wall. 591, the two expressions are equivalent.
In the present case, the defendant requested the court to instruct the jury “that if Israel Ferguson died by suicide the plaintiff cannot recover, unless he has proved to your satisfaction that such act of self-destruction was not Ferguson's voluntary and willful act; that he had not at the time sufficient power of mind and reason to understand the physical nature and consequences of such act, and did not have, at the time, a purpose and intention to cause his own death by the act;" “that unless the evidence established that Israel Ferguson did not commit suicide consciously and voluntarily, the plaintiff cannot recover;" and "that if he thus committed it, it is immaterial whether he was capable of understanding its moral aspects, or of distinguishing between right and wrong."
The court declined to give these instructions, and read to the jury the second instruction refused in Terry's Case, and the instructions given therein, as above quoted, and stated that the refusal of the former and the giving of the latter had been approved by this court, and that its decision contained a full exposition of the law, so far as it was necessary to be understood for the purposes of this case, and laid down the rule which would determine them in the application of the evidence which had been introduced ; and further instructed them as follows:
“Upon the part of the defendant, all argument based upon the peculiar circumstances surrounding the suicide has been addressed to you, which is deserving of consideration; the various circumstances, showing premeditation, plan, thought, which, it is very fairly urged, afford quite strong evidence that at the time of his death he was in the full possession of his mental faculties. A serious question, gentlemen, which you will ask yourselves in this case, it seems to me, is this: Had he, in view of his inisfortunes, and of the probable future that awaited him, deliberately come to the conclusion that it was better to die than to live, and did he in that view commit suicide; or was he so far mentally unsound that he could not exercise a rational judgment upon the question of life and death? Did he become oblivious to the duties which he owed to his family, to his friends, and to himself? Was he impelled by a morbid impulse which he had not sufficient strength of will to resist, and, acting under the influence of this insane impulse, did he determine to take his own life? Because, if his reasoning faculties were so far impaired that he could not fairly estimate the moral consequences, the moral complexion of the act, even though he could reason sufficiently well to prepare with great deliberation, and to execute his design with success, nevertheless, within the authority which I have read, he was so far insane that the plaintiff is enCitled to recover on this policy.”