The referees in this case have found, "That the assured on the twenty-fifth day of June, 1839, threw himself into the Hudson river, from the steam boat Erie, while insane, for the purpose of drowning himself, not being mentally capable at the time of distinguishing between right and wrong." The question is whether this act avoided the life policy in question, one condition of which is, that if the assured "should die by his own hand." the policy should be void.
It is by the finding established, that the assured cast himself into the river for the purpose of drowning himself. The act committed by him was therefore voluntary, and accompanied by so much intelligence as to enable the agent to contemplate a particular result, and adopt the means requisite to accomplish it. His object was self-destruction by drowning. For this purpose he cast himself *Page 310 into the river, and thereby effected it. If this was not "dying by his own hand" within the spirit and intent of this clause of the policy, it is difficult to attach any legal significance, to such language.
If under the same circumstances the assured had destroyed the property or assaulted the person of a citizen, he would have been civilly responsible for all the damages sustained by the latter. (Weaver v. Ward, Hob. 134. Cross v. Andrews, Cro. Eliz. 622.) Insanity unless it suspended the power of volition would be no justification; still less a want of moral perception to distinguish between right and wrong.
I can perceive no reason why upon the same principle he should not be held responsible for a willful breach of contract resulting from self-destruction, where it was premeditated, and accomplished by means usual, and appropriate, to effect his design. In Bagster v. the Earl of Portsmouth, (7 Dowl. Ryland, 614,) it was held that a lunatic was capable of contracting for necessaries. "Imbecility of mind, says C.J. Abbott, may, or may not be a defence in the case of an unexecuted contract." These cases show, that the assured, although insane, is a responsible agent for some purposes, and consequently, afortiori, that he can be affected and bound by a condition which qualifies the liability of the insurers, and which in terms, is made to depend upon an act, to be performed by the former.
In Borradale v. Hunter, (5 Manning Granger, 639,) in a life policy containing the same proviso found in the one before us, the jury found that the insured, "voluntarily threw himself into the water, knowing at the time, that he should thereby destroy his life, and intending thereby to do so, but at the time of committing the act, he was not capable of judging between right and wrong."
It was held that the policy was avoided. The proviso included all acts of self-destruction, and was not limited by the accompanying provisos to acts of felonious suicide. *Page 311 This decision was pronounced in 1843, and the case is not distinguishable from the one under consideration. The case cited was argued, and decided as one of insanity, in which however the assured was capable of voluntary action. Erskine, J., remarked "that all the contract required, was, that the act of self-destruction should be the voluntary and willful act of a man, having, at the time, sufficient power of mind to understand the physical nature and consequence of the act, and having the intention to choose his own death."
In that case, and in the present, the incapability of distinguishing between right and wrong was the measure of the insanity of the assured. Four years afterwards, Clift v.Schwabe was decided in the Exchequer Chamber, (54 Eng. Com.L.R. 437. § 3. 3 Manning, Granger and Scott) upon a policy in which the word suicide occured in place of the phrase "dying by his own hands." The issue was upon the fact of suicide, and an exception to the charge of the judge: it was held that the terms of the condition included all acts of voluntary self-destruction, and if the insured voluntarily killed himself, it was immaterial whether he was or was not a responsible moral agent.
These cases are directly in point: that last mentioned is much stronger for the assured than the one now under consideration.
When this case was before the supreme court on demurrer, the replication averred that when the assured drowned himself he was of unsound mind, and wholly unconscious of the act. This was admitted by the demurrer, and the question whether voluntary action can exist without some degree of consciousness, is very different from the one presented in by the finding before us.
I think the judgment of the supreme court should be reversed.
Upon the disposition of the case, RUGGLES, Ch. J., *Page 312 WILLARD, MORSE, MASON and TAGGART, JJ., were in favor of affirmance of the judgment, and GARDINER, JEWETT and JOHNSON, JJ., for a reversal.
Judgment affirmed.