[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 429 We think that there was sufficient evidence, tending to show that Henry C. Ross was insane at the time he committed suicide, to require the submission of that question to the jury. 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. (Gay v. Ins.Co., 2 Bigelow Rep., 4; Van Zandt v. Ins. Co., 55 N.Y., 169, and cases cited.)
The other branch of the defense, viz., that Ross, in his answers contained in the application for the policy, made an untrue statement in declaring that his father had not died of or been afflicted with insanity, was not in our judgment proved so conclusively as to justify the court in taking the case from the jury. The question propounded in the application was whether any member of his family (parents, brothers, or sisters) had "died of or been afflicted with insanity, epilepsy, disease of the heart, scrofula, or other hereditary disease," which question he answered in the negative; but in the same paper he stated that his father had died of a brain disease caused by a hurt.
The only evidence introduced by the defendant in support of this defense consisted of copies of two entries in the records of a probate court in the State of Ohio, one dated July 17, 1856, and the other dated October 18, 1856, by each of which it appeared that the probate judge had held *Page 430 Benjamin Ross (the father) to be an insane person and a fit person to be sent to the Northern Ohio Lunatic Asylum and ordered him to be sent to said asylum for treatment, also extracts from the records of the asylum showing that Benjamin Ross was admitted July 17, 1855, and again on the 20th of October, 1856.
Objections were taken to the admission of these records in evidence. Without now determining whether they were properly proven, or were admissible at all, it is sufficient to say that they certainly were not conclusive evidence against the present plaintiff of the insanity of Benjamin Ross. The only other evidence upon the point consists of the testimony of the widow of Benjamin Ross.
This being a case of nonsuit, the plaintiff is entitled to the most favorable construction of her testimony of which it is capable. She testified among other things that her husband had in his childhood received an injury on the back of his head. That he was for many years before his death afflicted with pains in his head, of which he complained and used to refer to the hurt he had when he was a child; that later he showed signs of weakening of his mental powers which continued and increased until his death at the age of about forty-seven years; that he was placed in the lunatic asylum through the kindness of friends, for quiet and treatment, but while there was not confined with the patients but worked in the bakery. It does not appear that he was subject to any delusions or ever acted in an irrational manner, but that he read the newspapers and kept posted on current events. His widow testified further that he seemed sick and seemed to suffer, but that he seemed to know what was going on clear to the end; that there had been no dispute as to what was the trouble with him before he went into the asylum; that all pronounced it softening of the brain whom she heard say anything about it; that after his death an autopsy was had and the doctors pronounced his disease a hardening of the brain; that the brain was shown to her and was hard, except in one place, where it was soft, and the doctors said the *Page 431 effect was the same as if he had died of softening of the brain.
Upon this evidence there was, to say the least, very slight, if any, ground for holding that the answer of the assured that his father had died of disease of the brain as distinguished from insanity, in the ordinary acceptation of the term, was not a fair and true answer, especially when the insanity inquired of in the question was classed among hereditary diseases. If there were any question upon this point it clearly was one of fact for the jury, and the mere circumstance that the deceased had been declared insane by a probate judge on an ex parte examination, and had been committed to an insane asylum, was clearly insufficient to warrant taking the case from the jury. If every disease of the brain sufficient to cause death was insanity in the view of the company, it was informed of the fact of such disease, and was not misled by the negative answer to the first question, and having issued the policy, and gone on more than six years receiving premiums under it, with knowledge of that fact, it cannot now set up that it constituted a breach of warranty, or misrepresentation which should free it from responsibility.
The order of the General Term should be affirmed and judgment absolute rendered for the plaintiff, with costs.
All concur, except ANDREWS, J., taking no part.
Order affirmed and judgment accordingly. *Page 432