MUTUAL LIFE INS. CO. V. LEUBIUE.

843

R. Sandy, it was Edwin Sandy. The plaintiff in this case did not know it. When Mary H. Sandy, the wife, no longer needs the protection of the law in order to secure to her her homestead, shall Edwin Sandy be allowed to reap a benefit of his own wrong? There is no contention but what the money was honestly paid over to Edwin Sandy, and some of it used by him to pay prior incumbrances and taxes, and for the general betterment of the place. The equities of this case are very strong against Edwin Sandy's defense. The mortgage is not void, but so long as Mary H. Sandy lived it not be enforced. Upon her death, there is no reason why it should not be enforced. In my opinion the plaintiff is entitled to recover the full amount of the note and interest coupons that remain unpaid, and to have a decree of foreclosure against the land for the payment of the same. Let such decree be entered.

MUTUAL LIFE INS. CO,. OF NEW YORK v. LEUBRIE. (Circuit Court of Appeals, Second Circuit. January 8, 1896.) No. 46. 1.
LIFE INSURANCE-SUICIDE-INSANITY.

SUicide of the insured is not a breach of a warranty in his application that he wlll not "die by his own hand," if, at the time of taking his ute, his reasoning faculties are so far impaired that he is not able to understand the moral character, general nature, consequences, and efrect ot his act, or when he is impelled thereto by an insane impulse which he has not the power to resist. Insurance 00. v. Terry, 15 Wall. 580, followed. 1
A. warranty in the application that the insured will not die by his own hand has the same efrect as a condition in the policy that the same shall be void it the insured shall die by his own hand.

2. SAME-WARRANTIES AND CONDITIONS.

8. SAME.

Where the policy is issued upon an application warranting that the insured will not die by his own hand, it is not necessary, in New York, for the plaintifr to allege the fact that the insured died by suicide, and to aver that he was insane at the time. It is not necessary to state the facts constituting performance of a condition precedent, but it is enough to aver generally that it was duly performed. Code eiv. Proc. N. Y. § 533. Upon the question as to the sanity of an insured person who has committed suicide, the testimony of nonprofessional witnesses, who were acquainted with him, in respect to his actions and apparent mental condition just prior to death, and their impressions as to his sanity, is admissible evidence. Insurance Co. v. Lathrop, 4 Sup. Ct. 533, 111 U. S. 612, and Insurance Co. v. Rodel, 95 U. S. 232, followed. same efrect as a previous instruction already given in the general charge.

4. SAME-EVIDENCE OF INSANITy-NoNEXPERT TESTIMONY.

5. TRIAL-INSTRUCTIONS. It is not error for the court to refuse a requested instruction to the

In Error to the Circuit Court of the United States for the Southern District of New York.
1 As to thll efrect of the self-destruction of the insured while insane, under policies containing conditions against SUicide, see note to Insurance Co. v. Florida, 16 C. C. A.. 618, 69 Fed. 932, where all the American authorities are collated.

344.

REPORTER.

vol. 71.

This was an action by Gussie Lj'!ubrie against the Mutual Life Insurance. Company of New York,upon a policy of ,l'ife in.surance. In the circuit court a verdict was rendered for the plaintiff,and judg· ment entered thereon. The defendant brings error. Robert Sewell, for plaintiff in error. Leopold'Wallach, for defendant in error. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. WALLACE, Circuit Judge. This is a writ of errorbrGught by the defendant in the court below to review a judgment for the plain. tiff ente,red, upon the verdict of a jury. , The action was ,on a policy Of life insurance issued by the defend· ant February 3, 1890, to Jay C. Leubrie, and payable) ,to him on the 3d day of February, 1905, if then living, or, if he should die before that time, to a sister,-theplaintiff. The policy was based upon, and recites that it was issued in consideration of, an application in writing 'signed by Jay C. teubrie, which, among other :things, con· tained a warranty that he would not die by his own hand during the period of two years following the issue of the policy. He died within the two years by suicide. The principal defense to the action was the breach of this warranty. ,Uponthe trial, evidence was introduced on behalf of the plaintiff tending to show that the de· ceased was insane at the time heCOlhmitted suicide. The trial judge tM JJlry, among other things, it was incumbent upon the ,establish by a'lair,preponderance of ,proof that, at the time the assured committed suicide, his reasoning faculties were so far impaired that he was not able to understand the moral char· acter, the general nature;consequen.ces,ap.d eff,ect, of the act, or that he was impelled thereto'by an 'insane impulse which he had not the and, if .'t;hiswas established, his death was not by his OWn hand within the meaning of ,the :tvarranty. Excep· tions were taken by the defendant which present the question wheth· erthis instruction was corr'ect, and alsowb,ethert4ere was suilicient evidence fhiding by tb,e jury, that tp.l? deceased was insane when he committed suicide. Since the case of Insurance Co. v. Terry, 15 Wall. 580,it has been perlectlywell settled in the courts of the United States that death by the suiCide ,Of the assured is not "death by his own hllnd," within the .meaning of a condition whereby the policy is tqbe void in that event, if,at the time of taking his own life, his' reasouing faculties were so far impaired that he was not able to understand the moral character, the general and effect, of the aCt,or when he was impelled tMreto by an insane impulse, which he had not the power to resist., mhe doctrine of that case has been repeatedly reailirmed by the supreme court. Bigelow v. Insurance Co.; 93 U. S. 284; Insurance Co. v. Radel, 95 U. S. 232; Insurance Co. v. Broughton, 109 U. S.121, 3 Sup. ct. 99;· Insurance 00. v. Crandal, 120 U. S. 527, .A. SUI>; qt. 685. Inasmuch as the of the trial judge was an exact statement of this proposition, its correctness

MUTUAL LIFE INS. CO. '/J. LEUBRIE.

845

cannot be impeached, unless there is a legal distinction between the effect of such a condition when recited in the policy, and when made the subject of a warranty in an application upon which the policy is founded. There is no such distinction. In either case there is a stipulation, upon the literal fulfillment of which the validity of the contract depends; and in either the policy is, to be void in the event of a breach,-a result which, by the condition, is expressly, and, by the warranty, is impliedly, assented to. Treating it as a condition precedent, pElrformance of whic:p., must be averred in the complaint, and a.ffirmatively establishedin proof, by the party who sues upon the policy, the averment is proved if the evidence shows that the assured was insane when he committed suicide. ' It was unnecessary for the plaintiff to allege in her complaint that the assured died by suicide, but was insane when he committed the act. It is not necessary to state the facts constituting performance of a condition precedent, and a general averment that it was duly performed iS'all that is requisite. ,Code Civ. Proc.,N. Y.§ 533. The complaint of the plaintiff contained this averment. Consequently there was no error in the ruling of the trial judge upon the question of ' . ' Although there was 'no controversy as to the suffiqiency of the proofs of death,' and they were received in without any objection on the part of the defendant, the plaintiff was allowed to show;' against the objection of the defendant, that when they were presented she did not know whether'the asslIred was sane or insane. Error isassigJied of this ruling. It suffices to dispose of this assignment that no ground of objection to the evidence was assigned. .. ' , The testini()ny of nonprofessional witnesses-persons who were acquainted with the assured-in respect to his. actions and,' hpparent mental condition just prior to his death, and their impressions as to his sanity, was allowed, against objection on the part of the defendant, and error is assigned of this ruling. The competency of such evidence was affirmed in Insurance Co. v.Rodel, in this language: ,
"Although: 'such testimony from ordinary may not have great weight with experts, yet it was competent testimony, and expressed in an inartificial way the impressions which are usually mad4;), by ip.salle,pel'Sons upon people of ordinary Understanding."

, In Insurance Co. v. Lathrop, 111 U. S. 612, 4 Sup. Ct. 533, the question of the competency of such evidence was fully considered, and its reception approved. The evidence tended to show that until within a few weeks of his death the assured was a bright, shrewd, joyful man. He was a merchant, about 33 years of age, unmarried, and doing a prosperous business. Suddenly, without any apparent cause, he became melancholy and despondent; thought he was sick and was going to die; complained of pains in his legs and in his toes,and other ailments; almost every night would 'get up from his bed and walk the room;

846

FEDERAL REPORTER,

voL 71.

to his business. The physician who attended became him after' these symptoms intervened could not discover that he testified that there was no organic trouble, that he was, pl1ysically in usual good health, and that "the greatest trou1;lle'I had with him was to convince him that not sick"; that "he was always all right when I)eft him, but I always found him in a, melancholy mood." Several days his death he attempted ,to commit suicide by taking laudanum. The night of his death, af:ter the family with whom he lived had l"etired, he left his room in his night clothes, proceeded to the back yard of the premises, and there gashed himself on his wrists and neck in Several places with a razor, and, although bleeding profusely, went back to his room, and thence, a considerable distance, to the Arkansas river, where he drowned himself. to show that he was rational Notwithstanding there was in his conversation, and perhaps preponderating evidence tending to overthrow the theory of his insanity, we cannot doubt that the case presented a fair question for the decision of the jury, and that the trial judge was not only justified in submitting it to them, but that it would have been error if he had refused to do so. Error is assigned of the refusal of the judge to instruct the jury, as requested on behalf of th,e defendant, that the opinion of a physician, a witness for the plaintiff, who had testified that the deceased was insane, but that the opinion was wholly founded upon the fact of suicide, should be disregarded by the jury. The' court had previously instructed the jury that suicide was not, of itself, evidence of insanity.. To have granted the instruction would have been, in effect, but to repeat the instruction which had already been given. Under the circumstances, the disposition of the request was matter which rested wholly in the discretion of the court. We find no error in the rulings at the trial, and the judgment is accordingly aftlrmed.
UNITED STATES, to Use of SBOLENBERG, v. DIXEY et aL (Circuit Court, E. D. Pennsylvania.
1.'

January 28, 1896.)

CONTRACTS-PERFOnMANCE-AFFlDAVIT OF DEFENSE.

A contractor for certain government work, being sued on a subcontract, under which a part of the work was to be done, set up, by affidavit of defense to the Pennsylvania practice), that the work specified in the subcontract had not completed according to the plans and specifications of the government architect. and had not been accepted by the government. Held, that the affidavit of defense was inSUfficient, in that it did not aver that the work wRsnot done according to the contract between plaintiff and defl:mdant.
, "

2.

SAME.

An affidavit of defense, by,a government contractor to the suit of a SUbcontractor; that the WOl'kundertaken by the latter was not completed according to the specifications of the government architect, and was not accepted by the government, hela 1nsufficient, for not stating that it was hot completed according to the, contract between the contractors.