Newton v. Mutual Benefit Life Insurance

Learned, P. J.:

On tlie question whether the deceased, C. Henry Eoss, “died by his own hand,” I think the case should have gone to the jury; principally on the point of his mental condition.

So, on the question (if that was urged by the defendant), whether the deceased died by reason of intemperance.

The remaining points have respect to the answers to questions in the application for insurance. “Have they (parents, brothers or sisters) died of or been afflicted with insanity, epilepsy, disease of the heart, scrofula or other hereditary disease?” Answer: “No.” '“If not living, at what age, and of what disease did they die?” Answer: “Father died at about 45 years from a brain disease caused by a hurt.”

The defendant claims that the father of the deceased was afflicted with, and died of insanity.

The evidence given by the defendant on this point is testimony by a superintendent of the Cleveland Hospital for the Insane in Ohio. He knew nothing of the disease of Benjamin Eoss, father of the deceased, but stated that the record of the books showed that he was twice admitted to that hospital.

I think that evidence improper. At the most it only established the fact that Benjamin Eoss had been admitted to the asylum; not that he was insane. Against the plaintiff, the administrator of Josephine Y. Ross, it established nothing material to the case.

Other evidence offered by the defendant was a copy of the records of the Probate Court in Ohio. These records simply state that the court visited Benjamin Ross, held an inquest of lunacy, and on the testimony of a respectable physician (naming him), and other testimony held said Ross to be an insane person. ' No proof was made as to the authority given to this court by the laws of Ohio. It was proved that the laws of Ohio require the papers in such cases to be filed, but no record thereof to be made; only a “journal entry of the finding of the court.” Now, admitting that an inquisition of lunacy duly found is prima facie evidence, the evidence produced falls short of such an inquisition. An inquisition, as known to our lawr, is a finding of facts by a jury. (Bouvier’s Law Diet.) We cannot assume, without proof, that the laws of a State have dispensed with that safeguard. Nor can we admit that such a mere entry as was produced is evidence in this State of the insanity of a person.

The remaining evidence on this point of insanity is that given by the widow of the deceased, called on behalf of the plaintiff. She testifies that Dr. Ackley said her husband needed quiet and treatment, and under those conditions he went to the asylum; that he was not confined with the patients; that he worked in the bakery and earned money; that he complained of pain in his head; that he had a hurt when a child; that he came out of the asylum and went back there again in the fall, and then came out about Christmas and lived with his wife till he died; that he always recognized her and his children. He seemed to know what was going on clear to the end. Before his death it was said that he had a softening of the brain. On a post-mortem examination, it was found that the brain was in a hardened state. When a child he had been hurt in the back of his head by a fall.

Now, on this evidence, it seems to me that at least it was a question for the jury, whether the answer was not true that Benjamin Ross died from a brain disease caused by a hurt. If there was a hardening of the brain, and if that was caused by the fall in childhood, the answer appears to have been true.

Again, looking at the other question, we see that it is “ Have they died of or been afflicted with insanity, * * * or other hereditary disease.” The word hereditary must have some meaning. The question probably is intended to determine whether the insured is likely to have the same disease. If the trouble under which Benjamin Boss suffered came from the fall, I do not see that we can assume that it was hci’editary. Indeed, he appears to have suffered rather under an enfeebling of the mind; “seemed like a man who could not think, and he did not seem to have a mind.” The widow says he had paroxysms of wildness, and explains her meaning by saying that if anything irritated him, he would be like a stubborn boy.

It is said that the only legal test of insanity is delusion. (In re Forman’s Will, 54 Barb., 275; Seaman’s Soc. v. Hopper, 33 N. Y., 619.) There is no evidence whatever in regard to Benjamin Boss that he ever suffered under any delusion. I do not think it necessary to enlarge on this point. Probably without the evidence, which, in the view above stated was improperly admitted, it would hardly be claimed that insanity was proved beyond all doubt. There should be a new trial; costs' to abide the event.