(dissenting).
I am convinced that the evidence presented a question of fact which the District Court was bound by law to submit to the jury. The District Court stated the question to the jury as follows: “Did the man who was killed have an intention in his mind, an impulse, while rational or irrational, while drunk or while sober, to take his own life, and thereby takes it, or did his death come about by an accident?”
The liability exemption clause in the insurance policy in question does not relieve from liability for the death of an insured who does an unreasonable or foolish act *78which causes his death. Unless the act is done by the insured for the purpose of causing his death it is not a case of self-destruction within the meaning of the clause. Furthermore, the insurer’s liability is not qualified by the fact that an insured’s death results from an unreasonable or foolish act committed while under the influence of intoxicating liquor or while suffering from great mental or emotional shock.
Without attempting to .discuss in detail the testimony of the witnesses I desire to call special attention to the testimony of Mrs. Lake and of witness Malcolm. They were in a position to have very definite and clear impressions of the events respecting which they testified; and if the jury believed their testimony such belief must have thrown considerable doubt upon the accuracy of the testimony of other witnesses whose testimony was vital to the defendant’s case, and must have affected the credibility of these witnesses.
Mr. Malcolm was in the room with Mr. and Mrs. Lake just prior to the events in question; and after an ineffectual effort to get Mr. Lake to go home, he left the room and went to a point directly across the street from the hotel. He saw Mrs. Lake come to the window and seat herself upon the sill; he saw her slip and fall from the window. He ran into the hotel and requested someone to call an ambulance and ran back to the point below the window, where he saw Mr. Lake already lying on the sidewalk. Mr. Malcolm testified that the total time consumed in going into the hotel and returning to the scene of the accident “could not have been over thirty seconds.” He also testified that when he returned there were only two persons there, “a policeman coming from the east” and “a small man with a white shirt” who was coming from the west, “running east.”
Mrs. Lake testified that her husband was “very, very drunk,” and that she “could not reason with him! at all.” She also testified that he slapped her and that she “stepped upon the window sill arid put both feet out”; that she told her husband that if he did not stop she was going to jump. She further testified that as she “was sitting on the sill” she turned back into the room to speak to her husband. She became aware that she was slipping and grabbed the window sill. As she was hanging, still clutching the window sill, her husband came to her and attempted to keep her from falling.
In addition to the testimony of Malcolm, which has been referred to above, he also testified that when he saw Mrs. Lake turn “around in the window, on the sill” he called to her: “Maxine, get back in there, you’re going to fall out.”
The jury found as a fact that Mr. Lake accidentally fell from the window and did not intentionally force, or throw himself out, with the intention of causing his death. Consequently, the jury was convinced either that Lake, while attempting to save his wife, leaned so far out of the window that he lost his balance and started, to fall at almost the very instant that his wife slipped from his grasp, or that he pushed himself farther out of the window in an effort to see the result of his wife’s fall and then lost his balance and crashed to the pavement.
The general tenor of the testimony of defense witnesses is that Lake was pulling, or “edging himself” across the window sill. But defendant’s witnesses also testified that while Lake was leaning out of the window and pulling, or “edging himself” across the window sill he had his “arms bent back” and was “holding on the window sill.” Also one of defendant’s witnesses testified that as Lake was falling “he had his hands to his sides and came down straight, head first.” The position of Lake with “his arms bent back” and “holding on the window sill” while “edging himself” across the window sill obviously is as consistent with the inference that he was attempting to avoid falling as it is with the inference that he was making a frantic effort to force himself out of the window for the purpose of committing suicide. Defendant’s witnesses leave no doubt that in using the descriptive words “edging himself” across the window sill they intend to convey the impression that the edging across was for the purpose of reaching a point where he would fall from the window. But the movement described as “edging” reasonably could have been the gradual slipping of Lake during the last stages of his effort to hold on to the window sill and thereby stop the momentum of his forward movement out of the window. In view of the physical *79facts it would have been so easy for the deceased to have plunged from the window that it is not difficult to understand that the jury might have concluded that if Lake had desired to take his life he would have followed the obviously simple method of merely allowing himself to fall out of the window instead of, as the defense witnesses describe it, “edging himself across the window sill.” There was a radiator in front of the window T 6" high, and the window sill was slightly less than T 6" from the top of the radiator. If the deceased had stepped upon the radiator his knees would have been higher than the edge of the window sill. If from such position Lake had leaned out of the window it would have required no effort to have plunged through the window to the pavement below. Furthermore, the radiator was only approximately 9%" in length, and the window was approximately 38%'' in width; consequently, there was ample space for the deceased to have leaned out of the window on either side of the radiator. The window sill was approximately 2' IT' from the floor, and since Lake was 6' 1" tall, the upper portion of his body extended 3' 2" above the window sill. It would seem reasonable that a man of his height, standing on the floor of the room, could have forced himself out of the window easily and quickly, if he were intending to kill himself.
The foregoing physical facts also furnish strong justification for the belief of the jury that the deceased accidentally fell from the window.
The majority opinion places special emphasis on the testimony of witnesses who testified that just before Lake fell he used the words “I am coming down.” Witness Isbel testified that Lake used the words “down I come”; witness Leonard testified that the words were “here I come”; and witness Lineberry testified that the words were “I am' coming down.” Isbel testified that Lake’s remark was in response to Isbel’s warning to Lake to “Get back.” Lineberry testified that the remark was in response to his exclamation “Get hack in there, you son of a bitch”; and witness Leonard testified that Lake’s remark was in response to the exclamations of Lineberry and Isbel, which exclamations, according to Leonard’s testimony, were substantially the same, but neither was the one that Lineberry testified that he actually used. Also, witness Isbel testified that the words that Mr. Lake used, after he, Isbel, told him to “get back there” were used only once.
If the jury believed the testimony of Malcolm and Mrs. Lake there was much in the testimony of defense witnesses which was necessarily inaccurate and improbable. The jury could not reconcile the testimony of defense witnesses as to the time elapsing between the fall of Mrs. Lake and that of Mr. Lake with the testimony of Malcolm. Malcolm testified that not more than 30 seconds of time elapsed from the instant that Mrs. Lake struck the pavement until he saw Mr. Lake lying there. Defense witnesses fixed the time from two minutes to “3 or 3% minutes.” If the jury accepted as accurate Malcolm’s estimate of “not more than 30 seconds” it must have discounted the dependability of the recollection of the other witnesses not only as to the time involved, but also as to the dramatic details which according to their testimony consumed from 2 to 3 or 3% minutes.
In view of the uncertainty which appears in the testimony respecting the remarks which were attributed to Mr. Lake we cannot say, as a matter of law, that the jury was required to believe that Lake made the remarks which were attributed to him; and certainly we cannot say as a matter of law that he used the exact words which were attributed to him. Witness Buckner testified that he “heard Isbel say to Lineberry, ‘Look out, he is coming too.’ ” Witness Lineberry testified that he “heard Don Isbel say, ‘My God, get out of the way, here comes a man.’ ” The jury might have believed that the witnesses, even though honest, were mistakenly attributing to the deceased exclamations of others.
But granting that the deceased exclaimed “down I come”, I do not understand how this court can say that such words, used under the circumstances, express, as a matter of law, an intention or purpose on the part of the deceased to take his own life, in the face of other circumstances from which the jury reasonably could have inferred that Lake’s fall was purely accidental. In view of Lake’s mental and-*80emotional condition, it is probable that the sudden realization that he was falling to certain death would not have produced the same shock that it would have produced if he had been in a normal condition; and it is understandable that he felt neither anguish nor regret at the prospect of his own death. And if Lake used some such expression as is attributed to him by witnesses, the jury reasonably could have found in the expression merely an indication of the deceased’s lack of concern for his own life and not a disclosure of a' purpose to take his own life. Undoubtedly the jury was justified in concluding that if Lake used the language attributed to him, he used it at a moment when he knew it had become physically impossible for him to avoid falling to the pavement below; and if the jury believed, as it reasonably could have under the testimony, that Lake had lost his balance accidentally and was falling from the window and that the exclamation came at a time when he was helpless to avoid plunging to the pavement, it was not important to the jury what Lake actually meant by the words used. But granting that it was material, it is a hopeless quest on the part of this court to try to determine the meaning which Lake intended to convey by the words attributed to him, in view of the circumstances under which they were used. Furthermore, I think that it is a clear invasion of the power and duty of the jury and of the District Court for us to place our interpretation on the supposed statement of Lake since it is not clear from the evidence just what words he did use and since the jury might have found that' he did not use any words substantially equivalent to the words attributed to him.
My purpose in discussing the factual circumstances is solely to justify my belief that the evidence presented a substantial, if narrow, question of fact for the jury; and I believe that the trial court correctly held that it was bound by the law to leave that narrow question of fact to the jury; and I further believe that for us to disturb the verdict of the jury and the judgment of the District Court based thereon requires us to disregard the dividing line which the law establishes between the power and function of trial courts and courts of review.