Breasted and others, administrators, against The Farmers' Loan and Trust Company, 8 N.Y. 299

Willard, J., delivered the opinion of the court. The question raised by the decision of the referees is substantially the same as that decided by the supreme court on the demurrer. (4 Hill, 73.) It will be unnecessary, therefore, to give to each a separate examination. It is material to determine, in the first place, what is meant by the term death hy his own hand, which is to avoid the policy. If the words are construed according to the letter, an accidental death occasioned by the instrumentality of the hand of the insured would fall within the exception.

Thus, should the insured by mistake swallow poison and thereby terminate his life, his representatives could not recover the policy, if the poison was conveyed to his mouth by his own hand. The same rule of construction applied to the words, death, hy the hands of justice, in the*same connection, would take the case out of the exception, if the death was occasioned by strangulation by a rope instead of the hands of the minister of justice. But it is too plain for argument that the literal meaning is not the true meaning of either phrase.

Death by the hands of justice is a well known phrase, denoting an execution, either public or private, of a person convicted of crime, in any form allowed by law. The moral guilt of the party executed has nothing to do with the definition. Socrates, though he took the poison from his own hand, died by the hands of justice, in this sense of the term It would be an abuse of language to charge him with

an act of intentional self-destruction. The martyrs who perished at the stake, in like manner “ died by the hands of justice.” In popular language the term death by his own hand, means the same as suicide, ox felo de se. The first two, indeed, are not technical terms, and may be used in a sense excluding the idea of criminality. The connection in which they are used in this policy, indicates that the phrase, death by his own hand, meant

an act of. criminal self-destruction. Provisos declaring the policy to be void in case the assured commit suicide or die by his own hand, are used indiscriminately as expressing the same idea. In the note to Borradale v. Hunter, 5 Man. & Gr., 648, are given the forms of the proviso, and by seventeen of the principal London insurance companies. In eight of them the exception is of a death by suicide, and in nine, of a death by the assured’s own hands. In two, a separate provision is made in case of a death by suicide not felo de se, and in two others in case of a death by his own hands not felo de se.

It is obvious, therefore, that the phrase, death by his own hand, and death by suicide mean the same thing, and that both, unless qualified by some other expressions, import a criminal act of self-destruction. The connection in which they stand in this policy favors this construction. The first four exceptions in the policy are of acts innocent in themselves, three of which become inoperative if the defendants give their consent and have it endorsed on the policy.

Then follow the last four exceptions, viz. if he shall die by his own hand, or in consequence of a duel, or by the hands of justice, or in the. known violation of any law, tf-e. By the acknowledged rule of construction, noscitur a sociis, the first member of the sentence, if there be any doubt in its meaning, should be controlled by the other members, which are entirely unequivocal, and should be construed to mean a felonious killing- of himself. Broome’s Maxims, 450, 293.

It is a note laid down by Lord Bacon that,.copulatio verborum indicat acceptionem in eodem sensu; the coupling of words together shews that they are to be understood in the same sense. And when the meaning of any particular word is doubtful or obscure, or when the expression, taken singly, is inoperative, the intention of the parties using it may frequently be ascertained and carriéd into effect by looking at the adjoining words, or at expressions occurring in other parts of the same instrument, for quae non valeant singula juncia juvant. Bacon’s Works, vol. 4, p. 26; 2 Buls.; Moore's Maxims, 293.

Besides, the words in this case are those of the insurer, and if susceptible of two meanings, should be taken strongly against him. It was not contended on the part of the defendant that the policy would be avoided by a mere accidental destruction of life by the party himself. It was urged that it would be, if the act was done intentionally, although under circumstances which would exempt the party from all moral culpability. It was insisted that the expression must be taken to mean a death by his own act. It seems to me that this is a yielding of the whole question.

An insane man, incapable of discerning between right and wrong, can form no intention. His acts are not the result of thought or reason, and no more the subject of punishment than those which are produced by accident. The acts of a madman which are the offspring of the disease, subject him to no criminal responsibility. If the insured, while engaged in his trade as a house joiner, had.accidentally fallen through an opening in the chamber of a house he was constructing, and lost his life, the argument concedes that the insurer would have been liable. The reason is that the mind did not concur with the act.

How can this differ in principle from a death in a fit of insanity, when the party had no mind to concur in or oppose the act. It must occur to every prudent man, seeking to make provision for his family by an insurance on his life, that insanity is one of the diseases which may terminate his being. It is said the defendants did not insure the continuance of the intestate’s reason. Nor did they in terms insure him against the small pox or scarlet fever, but had he died of either disease no doubt the defendants would have been liable. They insured the continuance of his life.

What difference can it make to them or to him, whether it is terminated by the ordinary course of a disease in his bed, or whether in a fit of delirium he ends it himself. In each, case the death is occasioned by means within the meaning of the policy, if the exception contemplates, as I think it does, the destruction of life by the intestate while a rational agent, responsible for his acts. It is competent no doubt for the insurer so to frame his policy as to exempt him from liability for a death occasioned in a fit of insanity. The parties have not done so in the present case.

It is urged that because a person non compos mentis is liable civiliter, for torts committed while in a state of insanity, therefore insanity has no effect to qualify this exception in the policy. That conclusion is not a legitimate deduction from the premises. A rational man is liable civiliter, for an injury occasioned by an accident, unless it he an inevitable one, and yet no one pretends that the insurer is not liable for a death by accident, whether inevitable or not. Indeed, the liability for death by accident was conceded on the argument.

A death by accident, and a death by the party’s own hand, when deprived of reason, stand on principle in the same category. In both cases the act is done without a controlling mind. If the insurer is liable in the one' case, he should be in the other. If the insured was compelled by duress to take his own life, it will hardly be contended that the insurer could avoid payment. In what consists the difference between the duress of man and the duress of Heaven"? Can a man be said to do

an act prejudicial to the insured when he is compelled to do it by irresistible coertion; and can it make any difference whether this coertion come from the hand of man or the visitation of Providence? But it is urged that this is a civil action, and the contract of insurance a civil contract. Be it so. A person so destitute of reason as not to know the consequences of his acts can make no valid contract. Whether the incompetency be the result of disease or of intoxication, his contracts made while in that condition ' are void. (Barret v. Baxter, 2 Aiken Vt. Rep. 167, approved by Ch. Walworth in Prentice v.

Ackom, 2 Paige, 31, and by Ch. Kent in 2 Com. 451; Smith’s Law of Contracts, 329, 333, and notes.) If the party could do no act to bind himself, he certainly could do none to discharge the insurer. If he could not make a bond, he could not make a release. If he could not make a will, he could not revoke one. The liability of a lunatic for necessaries rests upon the ground that the law will raise a contract by implication on the part of the lunatic, in favor of the party who has supplied them in good faith, and therefore does not affect the present question. (Wentworth v. Tubbs, 1 Young and Col. N.

C. 171.) The cases on this head are analagous to that of an infant. See Smith's Law of Contracts, 325, et seq. and notes, where the cases are collected and reviewed. The law to prevent a failure of justice will imply a promise by a party incapable of making a contract; but it will never imply that a party incapable of distinguishing between right and wrong was guilty of a fraud. At the time this case was decided by the supreme court on the demurrer, there had been no case either in this country or in England in which the same question had arisen. The case of Borradale v.

Hunter, (5 Man. & Gr. 639,) decided by the English common pleas in 1843, has since been reported. That action was brought by the executor of the insured upon a life policy containing a proviso, that in »case the assured should die by his own hands, or by the hands of justice or in consequence of a duel the policy should be void. The assured threw himself into the Thames and was drowned.

Upon an issue, whether the assured died by his own hands, the jury found that he 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 by a majority of the court, Tindal, Ch. J., dissenting, that the policy was avoided, as the proviso included all acts of voluntary self-destruction and was not limited by the accompanying provisos to acts of felonious suicide.

The three judges who formed the majority, laid the main stress upon the fact, that the jury found the act of self-destruction to be voluntary, that he knew when hé threw himself into the river he should thereby destroy his life, and that he intended thereby to do so. The referees in the present case have not found that the intestate acted voluntarily, or that he knew the consequence of his act. They merely find that while in-sane, for the purpose of drowning himself, he threw himself into the river, not being mentally capable of distinguishing between right and wrong.

If Borradale v Hunter be an authority which we ought to follow, it differs so much from the case before us, that we are at liberty to decide it upon principle. After the case of Borradale v. Hunter, the case’ of Schwabe v. Clift was tried at nisi prius, before Cresswell, J. It was upon a policy upon the life of the plaintiff’s intestate, containing the proviso that if the assured slioqld “ commit suicide, or die by dueling or by the hands of justice, the policy should be void.

The assured died from the effects of sulphuric acid taken by himself, but evidence was given tending to show that at the time he took the sulphuric acid, he was in part of unsound mind. In his charge to the jury, the learned judge said that to bring the case' within the exception, it must be made to appear that the deceased died by his own voluntary act; that at the time he committed that act, he could distinguish between right and wrong, so as to be able to understand and appreciate the nature and quality of the act he was doing; and that, therefore, he was at that time a responsible being.

The jury found for the plaintiff. (2 Car. & Kirwan, 134.) This cause was afterwards brought into the court of exchequer chamber on bill of exceptions, and will be found in 3 Man. & Gr., 437, by the title of Clift v. Schwabe. That court, by a vote of four to two, ordered a new trial, holding that the direction was erroneous; for that the terms of the condition included all acts of voluntary self-destruction, and therefore, if A voluntarily killed himself, it was immaterial whether he was or was not at the time a responsible moral agent. This, case is open to the same remark as Borradale v. Hunter, supra.

It turned upon the assumed fact that the act of suicide was voluntary; a fact not found by the referees in this case.