testimony of the plaintiff himself, that, at the time of the second advance of the sum of $7,000, he was informed and well knew that the boat was not free from incumbrances and liabilities. On the contrary, he himself says that he made the advance to enable the defendant to pay debts then existing. He testified that Thorwegan said, "if he could get that much money it would pay out the debt and would have her clear of all debts; and that if he didn't get the money the boat would be tied up before he left here, and he wouldn't be able to turn a wheel." This is the strongest statement made by the plaintiff as to any representation of the defendant in reference to the amount of the boat's existing indebtedness. In the same connection, the witness stated that nothing was said about the amount of the indebtedness. On cross-examination, the following questions and answers sum up the transaction: "169 int. As I understand, you testify in your examination in chief that Thorwegan promised that he would pay off the debts due by the boat, and all the demands against her? A. Yes, sir. 170 int. And you relied on that promise? A. Yes, sir. 171 int. And you let him have your money? A. Yes, sir. 172 int. That's the way of it? A. Yes, sir. 173 int. You did'nt care about an interest in this boat particularly, but you wanted to help Thorwegan more than anything else; that was your motive? A. That was the motive. I saw he was in trouble, as he stated to me." On re-examination, the following question and answer appear: "179 int. At that time, in October, 1876, you placed full reliance on the representations that the boat was free and clear of all debts, didn't you? A. I did; that she was turned over [to] me clear of all debts due and demands up to that date. It was not on the first of October; the boat was to be turned over to me when she was at the wharf ready for receiving cargo. That was the understanding, and the captain will state that fact himself."

At the time of the transaction the boat was undergoing repairs. When these were finished the corporation was organized as proposed, and the boat transferred to it; but, as appeared from the testimony of the clerk, introduced as a witness on the part of the plaintiff, with an unpaid indebtedness at that time of $68,000, of which about $10,000 were liens upon the boat, the remainder being represented by notes, etc., on building account. The boat was worth from $160,000 to $175,000, in his opinion, at that time. She was lost by fire in September, 1877. There was insurance on her, however, only for $50,250, which went to pay creditors.

On the part of the defendant, a writing obligatory was introduced as evidence, signed, and sealed by the defendant, reciting the agreement with the plaintiff of October, 1876, for a sale of one-eighth interest in the boat, represented by one-eighth of the stock of the corporation, and containing a covenant to hold the plaintiff harmless from all claims, incumbrances, and liabilities existing on said steamer at that date, and agreeing to pay all claims and incumbrances existing on said boat on that day, as well as all maritime and other liens, so that no part thereof as against him should be chargeable to or paid by the new company, a copy of which was set forth in the original petition of the plaintiff. The defendant was called on his own behalf, and denied making any representations as to the indebtedness of the boat at the time of the sale. There was evidence, taking up much space in the record, consisting of accounts showing receipts and disbursements on account of the boat for 16 trips, most of them made after the sale to King, and of the examination of the clerk in reference thereto, which, in our opinion, ought not to have been admitted. It was irrelevant, and tended to confuse and mislead the jury to the prejudice of the defendant by suggesting questions of good faith as to the management of the boat, after the transaction in question, which were not part of the issue, and which threw no light upon it.

In this state of the evidence, the defendant requested, among others, the following instruction to be given to the jury: "The jury are instructed that

unless the evidence clearly shows that defendant, with intent to defraud the plaintiff, falsely represented to him some material facts alleged in the petition, and relied on by the plaintiff, whereby plaintiff, to his damage, was induced to enter into the contract described in the petition, then they must find for the defendant." This the court refused to give, and to this refusal exception was duly taken. The proposition contained in the request is a correct statement of the law, and strictly applicable to the case. The defendant was entitled to have it given to the jury, if not in the precise form asked, at least in substance. It is not contested in argument as unsound; but the refusal to give it is met by the claim that it was given, substantially as prayed, in the charge of the court. This is set out in full in the bill of exceptions, and it becomes necessary, therefore, to examine it, to ascertain whether it properly covers the point of the instruction asked for and refused. That examination satisfies us that it does not; but that, on the contrary, it contains directions to the jury inconsistent with the instruction requested. Among other things, the court, in its charge, said: "The complaint is that by fraudulent and false statements, a suppression of the truth on the part of the defendant, the deception was practiced upon the plaintiff." And: "The the law will not permit any one to make fraudulent representation, and thus obtain from the party some valuable thing, money, or otherwise. If any one commits a fraud of that kind, and thereby another loses his money, having trusted to what was said to him, why the individual who does it is still responsible to the party thus defrauded. And in this connection, gentlemen, you will view the whole case, not only what the party said, but if you shall come to the conclusion he left things unsaid that he ought to have said,—that is, that there was a suppression of truth when it was demanded from him, or, from other circumstances of the case, he ought to have disclosed the facts,that is just as bad as asserting a fact which does not exist, and, in relation to that, you will have to view it with the acts of the other party also."

After the jury had retired they requested further instructions, as follows: "The jury desire to be instructed whether the withholding of the true financial condition of the boat constitutes a fraud?” And, in answer, the court said: "If the disclosing of it, as I have told you before, became a duty,—that is, if the withholding was intentional, for the purpose of accomplishing a fraud upon the individual,-and it was necessary for it to be disclosed, then such withholding would be a fraud. But if the individual advanced the money without any question, or any question concerning the financial condition of the boat, or if he took other guaranties, so as to secure himself against contingencies, then it might not be necessary. I can't answer the question by saying yea or nay, for the very question depends on the circumstances of the case. For instance, I am talking to an individual designing to accomplish an object. If I find that individual is desirous of obtaining certain information for the purpose of either denying or granting the request I make, and I withhold the information, that is a fraud, provided I do it with the intention of inducing him to do a thing that he would not otherwise do. That is a fraud or deceit, as the law calls it. * * * If you should come to the conclusion that it became necessary for this individual to know the financial condition of the boat, and it was withheld by the other party intentionally, for the purpose of misleading him, then you should solve this question as you think the testimony justifies." This charge assumes that the plaintiff's case was based upon a fraudulent suppression of material facts, knowledge of which the defendant was under some legal duty to communicate, and that there was evidence before the jury tending to prove the allegation. The assumption is wrong in both its parts. No such averment is made in the pleadings, and there was nothing in the evidence tending to prove it. The whole case, as we have heretofore stated, as exhibited in the petition or complaint, rested upon an alleged positive misrepresentation of an existing fact; and all the

evidence intended to establish the fraud charged was directed to the proof of that actual misrepresentation. There was no suggestion of any such relation between the parties, or of anything in the circumstances of the transaction, that imposed upon the defendant the legal obligation of making any disclos ures, in respect to which he failed to speak. The whole charge was that, having undertaken to make a statement of a particular condition of facts, he had done so falsely and fraudulently. The court, therefore, should have confined its instructions to the jury to the point really involved in the issue, and, omitting what was said in respect to fraudulent suppressions, informed them that there was no evidence in the case that authorized their request for further instructions upon the point involved in their inquiry. It was error, therefore, to refuse to give the instruction asked for by the defendant, as set out above.

The judgment is therefore reversed, and the cause remanded, with directions to grant a new trial.

(111 U. S. 612)

CONNECTICUT MUT. LIFE INS. Co. v. LATHROP, Adm'r, etc.

(May 5, 1884.)

1. PRACTICE-Taking Case FROM JURY-EVIDENCE.

The rule reaffirmed, that a case should not be withdrawn from the jury unless the testimony be of such a conclusive character as to compel the court, in the exercise of a sound legal discretion, to set aside a verdict in opposition to it.

2. LIFE INSURANCE SUICIDE-INSANITY-EVIDENCE.

Upon an issue in a suit upon a life policy as to the insanity of the insured at the time he took his own life, the opinion of a non-professional witness as to his mental condition, in connection with a statement of the facts and circumstances within his personal knowledge upon which that opinion is based, is competent evidence.

In Error to the Circuit Court of the United States for the Western District of Missouri.

Jeff. Chandler, for plaintiff in error.

Wallace Pratt and Jeff. Brumback, for defendant in error.

HARLAN, J. This is a writ of error from a judgment in favor of Helen Pitkin, the beneficiary in two policies issued by the Connecticut Mutual Life Insurance Company upon the life of her husband,-one, on the tenth day of August, 1866, for the sum of $5,000; and the other, on the twenty-fourth day of September, 1873, for the sum of $423. The insured, George E. Pitkin, died on the twenty-ninth day of September, 1878. After the case came here, the beneficiary in the policies died, and there was a revivor against her personal representative. The defense was the same as to each policy. Briefly stated, it is this: That the policy expressly provides that in case the insured shall, after its execution, become so far intemperate as to impair his health, or induce delirium tremens, or should die by his own band, it shall be void and of no effect; that, after its execution and delivery, he did become so far intemperate as to impair his health, and induce delirium tremens; also, that he died by his own hand, because, with premeditation and deliberation, he shot himself through the heart with a bullet discharged by himself from a pistol, by reason whereof he died. Further, that the affirmative answer by plaintiff, in her application for insurance, to the question whether the insured was then and had always been of temperate habits, being false and untrue, the contract was annulled, because, by its terms, the policy was to become void if the statements and representations in the application-constituting the basis of the contract between the parties were not in all respects true and

correct. The plaintiff, in her reply, put in issue all the material allegations of the answer, except that alleging the self-destruction of her husband; as to which she averred that, "at the time he committed said act of self-destruction, and with reference thereto," he "was not in possession of his mental faculties, and was not responsible for said act."

At the close of the evidence introduced for the plaintiff, the defendant, by counsel, moved the court to instruct the jury that upon the pleadings and evidence the plaintiff could not recover. That motion was denied, and the action of the court to which the defendant at the time excepted-is assigned for error. This instruction, it is claimed, should have been given upon the ground that the evidence disclosed no symptom whatever of insanity upon the part of the insured. But that position cannot be sustained upon any proper view of the testimony. There certainly was evidence tending to show a material, if not radical, change for the worse in the mental condition of the insured immediately preceding his death. In the judgment of several who knew him intimately, and had personal knowledge of such change, he was not himself at the time of the act of self-destruction. Whether his strange demeanor immediately before his death was the result of a deliberate, conscious purpose to feign insanity, so as thereby the more readily to defraud the company, was a matter peculiarly within the province of the jury to determine. If the refusal of the court to sustain the motion would have been error, had there been an entire absence of proof to sustain the plaintiff's suit, it is sufficient to say that there was evidence of a substantial character tending to show that the insured was insane when he took his life.

In Ins. Co. v. Rodel, 95 U. S. 238, where the question was made as to the duty of the court, on a motion by the defendant for a peremptory instruction based wholly on plaintiff's evidence, it was said that "if there was any evidence tending to prove that the deceased was insane when he took the poison which caused his death, the judge was not bound to, and, indeed, could not properly, take the evidence from the jury. The weight of the evidence is for them, and not for the judge, to pass upon."

The case clearly comes within the rule announced in Phanix Ins. Co. v. Doster, 106 U. S. 32, S. C. 1 SUP. CT. REP. 18, that "where a cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury, under proper directions as to the principles of law involved. It should never be withdrawn from them unless the testimony be of such a conclusive character as to compel the court, in the excercise of a sound legal discretion, to set aside a verdict returned in opposition to it.”

When the evidence was concluded on both sides the defendant submitted requests for instructions. Some of them were given and some refused, but it does not appear from the record which were given and which refused. As the exception which was taken related to the refused instructions, and since it does not appear which of them belonged to that class, none of the series asked by defendant can be noticed. We may, however, remark that the charge of the court, to which no exception was taken, embodied all of defendant's instructions that were applicable to the case, and which could properly have been given.

This brings us to the consideration of the substantial questions presented by the assignments of error. They relate to the admission, against the objections of the defendant, of certain evidence touching the condition of the mind of the insured at or about the time he destroyed his life.

Before the introduction of the particular testimony to which the objections related, there was, as we have already said, proof tending to show that Pitkin was not entirely sound in mind. Witnesses well acquainted with him remarked the unusually excited, wild expression of his face. A domestic in his family testified that "he looked very wild and frightened out of his eyes; he looked like some one that was crazy." Within a few hours before death

he bade one witness, whose store he visited, good-bye, saying that he was "going to a country where there is no return." To another witness, on the same occasion, he appeared to be "out of his head; kind of mad, insane."

At this stage of the case one Strein was introduced as a witness for plaintiff. Pitkin was in his saloon about 11 o'clock of the day on which he took his life, and a few hours only before his death. So much of his examination (omitting the questions) as is necessary to a proper understanding of the objections made by plaintiff in error is here given: Answer. He asked for a glass of wine, and I gave it to him. He said he hadn't had a drink yet that day, or since the one he had last night from me,-that was a glass of wine. He said, 'I may look queer this morning or drunk to other people, but I ain't drunk.' He said, 'Some people may think me drunk, but I am not; I am not drunk in my body, but I am in my mind.' He looked unusual to me. He had on his old clothes, and his neck-tie was out of shape, his face was red, and his eyes staring at me, which made me think he was quite out of his usual way. His appearance and the look was quite different from his usual appearance prior to that time. He looked, in his face, quite red, and his eyes had quite another expression. He had them open wide, with a look that was wild, and he looked around the room awhile and walked up and down, and seemed very restless. He would not stand at one place like he usually did, but walked up and down. I spoke a few words after that, but I did not notice him very much, for I was very busy." The witness being asked to state the impression made upon him by what he saw of Pitkin's condition, the defendant objected to the question as incompetent. But the objection was overruled, and an exception was taken. The witness answered: "My impression was that he seemed to be quite out of his head that morning. I could not say the reason. I didn't know then anything about his disappointment; I found that out afterwards."

Another witness, Mr. Ferry, an attorney at law, was introduced by the plaintiff. He saw Pitkin the morning of the day he killed himself. What occurred was thus stated by him: "I came down Broadway, walking, and Mr. Pratt came down from his residence on Washington street, in a street car, and got out on the corner of Sixth and Broadway, and we went there in front of the office. Mr. Pitkin was standing very near the door, and as we passed up the stairway going to our office we both said, 'Good morning' to him, and Mr. Pratt says, 'Pit., why ain't you at church?' Mr. Pitkin said, I am not going to church, I am going to hell;' and we immediately passed on up stairs and into the doorway, but as we started up stairs Pitkin stuck his head into the door and says, 'Do you want to send any word to him?' Mr. Pratt says, "To whom?' To the devil; I am going to hell,' and he turned immediately and went out of the door." Being asked how Pitkin looked during that conversation, he said that "he seemed very much agitated and nervous; his face was flushed; the pupil of his eye dilated and bright, and there was no expression in it." Against the objections of defendant he was permitted to testify that the impression left on his mind, from the conduct, actions, manner, expressions, and conversation of Pitkin, was that "he was crazy, and didn't know what he was doing."

Exception was also taken to the action of the court in permitting the witness Aldrich to answer a certain question. He saw the deceased a few moments before his death, and observed that he "looked strange;” had “a very peculiar look," one that he had never seen before. It was "a wild look." Being asked what impression Pitkin made upon him by his manner and conduct at the time, he answered,-the defendant's objection to the evidence being overruled,-"I thought he was out of his head."

It is contended, in behalf of plaintiff in error, that the impressions and opinions of these non-professional witnesses as to the mental condition of the insured, although accompanied by a statement of the grounds upon which