dissenting.
This action was brought to recover upon a policy of life insurance. The death of the assured was conceded, and therefore the plaintiff was entitled to recover. If the assured died by his own hand or act, sane or insane, the plaintiff was entitled to recover the net premiums paid on the policy. If he did not die by suicide, she was entitled to recover the amount insured. The *231opinion of a majority of the court states: “ There was no evidence tending to show that the insured committed suicide, or died by his own hand, sane or insane.” If this was true, a verdict should have been ordered for the amount insured; but, was it ? In putting in the evidence the defendant claimed : “ The fact is, this man committed suicide.” This shows the defendant’s claim, and Mr. Boyce, the plaintiff’s agent or attorney, testified that he sent the defendant the findings of the coroner’s jury in connection with, and as a part of, the jiroofs of loss, and responded to this inquiry— “ Q. Advising the company that this man committed suicide ?” — by answering: “I (it, the proofs) might have used that term.” I think this testimony of Mr. Boyce had a tendency to show death by suicide, and in that view of the case, that question should have been submitted to the jury to determine which sum should be recovered; the amount of the net premiums, or the amount insured ; and the disposition of the case by the majority of the court is correct; but I think the fair construction of the exceptions is, that not only was there testimony tending to show death by suicide, but that that fact was conceded upon trial. A large part of the testimony given upon the trial, was upon the question of the insanity of the insured at the time of his death. Mr. Shurtleff says : “We will examine the witness further with reference to the condition this man was in, immediately prior to his death.” Whether the testimony to show insanity should come from experts was a question made by the defendant’s counsel, and passed upon by the court. The, testimony strongly tended to show insanity, and when it was all in, the position of the plaintiff is shown by the claim made by Mr. Shurtleff, and it was the only question -which he wished to have submitted to the jury. “We have a right to go to the jury as to the condition this man’s mind was in. We claim the right to go to the jury on the question, whether it is not such a case as we have a right to recover upon.” In other words, it was in *232effect saying, this man committed, suicide, and we have a right to recover, because at the time he suicided, he was insane.
The counsel say in their brief, that the fact of suicide was not admitted, and comment. “ How the court could assume upon this evidence to direct a verdict, is beyond comprehension.” The whole testimony aside from the relationship of the parties, and the fact of death, was upon the question of insanity. "What the counsel were introducing testimony upon the question of insanity for, unless the. fact of suicide or testimony tending to show it, was in the case, is as incomprehensible to me as ordering a verdict seems to have been to them, for under no conceivable circumstances was it pertinent unless the man died by his own hand. Unless the fact of suicide was in, the only charitable explanation to be given the conduct of every one connected with the trial is, that the evidence upon, and the discussion connected with the question of insanity of the assured, had so upset the minds of both court and counsel, that for the time being they were afflicted with the same disease. Giving the exceptions the construction that I do, is the only way you can consistently account for the conduct of the counsel, or the action of the court.
I would affirm the judgment.