*521

1906.

HARRISON v. MAGOON.

577

*Mr. Justice Holmes delivered the opinion of the court:

fer with the supreme court of the state | personis, and Messrs. E. B. McClanahan and on a question relating to its law. But, S. H. Derby for defendant in error Ables. holding the opinion that the law directly taxes national securities, our duty is clear. If, by the simple device of adopting the value of corporation shares as the measure of the taxation of the property of the corporation, that property loses the immunities which the supreme law gives to it, then national securities may easily be taxed whenever they are owned by a corporation, and the national credit has no defense against a serious wound.

Judgments reversed, and cases remanded for further proceedings not inconsistent with this opinion.

This is a writ of error to review a judgment for the defendants in a suit upon a contract. 16 Haw. 332, 485. At the trial a nonsuit was ordered, subject to exceptions taken by the plaintiff. A motion for a new trial was made but was dismissed, and this dismissal also was excepted to. The supreme court held that the former exceptions were presented too late, but that the latter was open and raised the question whether the judgment of nonsuit was right as matter of law. It discussed this question and

The CHIEF JUSTICE, Mr. Justice Harlan, sustained the judgment. This was on Deand Mr. Justice Peckham dissent.

(205 U. S. 501)

THOMAS MILNER HARRISON,
Plff. in Err.,

V.

J. A. MAGOON, F. B. McStocker, Dorothea
Emerson, L. C. Ables, T. E. Cowart, J. H.
Kirkpatrick, A. E. Powter, J. Wolfenden,
and George D. Moore.

Error to Hawaiian supreme court-effect of
amending jurisdictional statute.

A writ of error from the Federal Supreme Court to the supreme court of the territory of Hawaii which would not lie when final judgment was entered cannot be sustained as an exercise of the appellate jurisdiction conferred by the act of March 3, 1905 (33 Stat. at L. 1035, chap. 1465), §3, amending the act of April 30, 1900 (31 Stat. at L. 141, 158, chap. 339), § 86, because a petition for rehearing, which the territorial supreme court entertained and

acted upon, was not denied by that court until after the later statute went into

effect.

[No. 107.]

cember 14, 1904. In January, 1905, a petition for rehearing was filed; it was entertained by the court, and, after argument, was denied on March 6, 1905. The defendants in error now move to dismiss, the main ground being that the act of March 3,

1905, chap. 1465, § 3 (33 Stat. at L. 1035), amending the act of April 30, 1900, chap. 339, § 86 (31 Stat. at L. 141, 158), granting writs of error, etc., does not apply.†

It is answered for the plaintiff in erro that, as the petition for rehearing was en. tertained and acted upon by the supreme court of the territory, the time to be considered is the date when the petition was denied, and that that was after the statute went into effect. Voorhees v. John T. Noye Mfg. Co. 151 U. S. 135, 38 L. ed. 101, 14 Sup. Ct. Rep. 295; Northern P. R. Co. Holmes, 155 U. S. 137, 39 L. ed. 99, 15 Sup. Ct. Rep. 28. No doubt the decisions cited and others show that where a right to take the case up exists at the time of the original judgment, the time limited for the writ of error on appeal does not begin to run until the petition for rehearing is disposed of. But there are limits to even that rule.

Submitted March 18, 1907. Decided April When an appeal in bankruptcy, required by

22, 1907.

N ERROR to the Supreme Court of the I Territory of Hawaii to review a judg ment which overruled exceptions from the Circuit Court of the First Circuit in that territory, which had ordered a nonsuit in an action on a contract. Dismissed for want of jurisdiction.

general orders in bankruptcy, 36, ¶ 2, to

†Act of April 30, 1900, chap. 339, § 86: The laws of the United States re

lating to appeals, writs of error, removal of causes, and other matters and proceedings as the courts of the several states, shall govern in such matters and proceedings as between the courts of the United States and the

between the courts of the United States and

See same case below, 16 Haw. 332; on courts of the territory of Hawaii. rehearing, 16 Haw. 485.

The facts are stated in the opinion. Mr. Thomas Milner Harrison, in propria persona, and Messrs. David L. Withington, A. G. M. Robertson, and W. R. Castle for plaintiff in error.

Amended by act of March 3, 1905, chap. 1465, 3, by adding at the end of the section: "Provided, That writs of error and appeals may also be taken from the supreme court of the territory of Hawaii to the Supreme Court of the United States in all cases where the amount involved, exclusive of costs, exceeds the sum or value of five

Messrs. J. Alfred Magoon, F. B. McStocker, and Mrs. Dorothea Emerson, in propriis' thousand dollars.” 27 S. C.-37.

502

be brought within thirty days after the judgment or decree, was not brought within that time, the fact that a petition for rehearing was filed within the time required by the court below, but after the thirty days, was held not to prolong the time for appeal. "The appellant could not reinvest himself with that right by filing a petition for rehearing." Conboy v. First Nat. Bank, 203 U. S. 141, 145, 51 L. ed. 128, 27 Sup. Ct. Rep. 50. If, at the time of final judgment, there is no right of appeal whatever, it is perhaps even plainer that a party cannot evoke a new one by filing a petition for rehearing, even if, by accident, it is kept along until an act giving an appeal is passed. Whether, in any event, a writ of error would lie in this case, it is unnecessary to decide.

Writ of error dismissed.

ETNA LIFE INSURANCE COMPANY OF
HARTFORD, Connecticut.

Constitutional law-police power-insurance
-suicide as defense.

1. The exclusion of suicide as a defense in suits on policies of life insurance which is effected by Mo. Rev. Stat. 1879, § 5982, unless such suicide was contemplated at the time application was made for the policy, is a legitimate exertion of power by

the state. *

Insurance-suicide as defense.

2. A policy of accident insurance issued after the passage of Mo. Rev. Stat. 1879, 5982, providing that in all suits on policies of insurance on life it shall be no de

fense that the insured committed suicide unless it be shown that he contemplated suicide when applying for the policy, cannot lawfully restrict the liability of the insurance company to one tenth of the principal sum insured, in the event of suicide not contemplated by the insured at the time application was made for the policy.

[No. 258.]

Argued April 12, 1907. Decided April 22, 1907.

0

N WRIT of Certiorari to the United States Circuit Court of Appeals for the Eighth Circuit to review a judgment which affirmed a judgment of the Circuit Court for the Western District of Missouri, limiting the recovery on a policy of accident insurance because of the suicide of the insured to one tenth of the principal sum named in the policy. Reversed and remanded for further proceedings.

See same case below, 75 C. C. A. 358, 144 Fed. 356.

The facts are stated in the opinion. Messrs. Frank Hagerman and Herbert 8. Hadley for petitioners.

Messrs. James C. Jones, J. J. Darlington, Jones, Jones, & Hocker, and Boyle, Guthrie, & Smith for respondent.

Mr. Justice Harlan delivered the opinion of the court:

This is a suit upon an accident policy of insurance issued November 3d, 1900, by the Etna Life Insurance Company of Hartford, Connecticut, upon the life of James Whitfield, a resident of Missouri. The policy specifies various kinds of injuries; also, the amount that will be paid by the company on account of such injuries respectively. It provides: "If death results solely from such injuries within ninety days, the said company will pay the principal sum of $5,000 to Amanda M. S. Whitfield, his wife, if living; and, in event of the death of said beneficiary before the death of the insured, to the executors, administrators, or assigns of the insured." The policy recites that it was issued and accepted by the assured, James Whitfield, subject to certain conditions, among which are these: . . . 5. In event of death, loss, of limb or sight, or disability due to injuries* intentionally inflicted upon the insured by any other person (except assaults committed for the sole purpose of burglary or robbery), whether such other per

66

son be sane or insane, or under the influence of intoxicants or not; or due to injuries received while fighting or in a riot; or due to injuries intentionally inflicted upon the insured by himself; or due to suicide, sane or insane; or due to the taking of poison, voluntarily or involuntarily, or the inhaling of any gas or vapor; or due to injuries received while under the influence of intoxicants or narcotics,-then, in all such cases referred to in this paragraph, the limit of this company's liability shall be one tenth the amount otherwise payable under this policy, anything to the contrary in this policy notwithstanding.

8. The maximum liability of the company hereunder in any policy year shall not exceed the principal sum hereby insured, and in no event will claim for weekly indemnity be valid if claim is also made for any of the stated amounts herein provided for specified injuries, based upon the same accident and resulting injuries."

The insured died April 7th, 1902, the plaintiff, his widow and the beneficiary of the policy, alleging in her petition that he died "from bodily injuries, effected through

Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, § 1153.

external, violent, and accidental means, and by a pistol shot." The petition also states that the company, after receiving proofs as to the death of the insured, offered to pay $500 as the full amount due by § 5 of the policy, but refused to pay more. The plaintiff asked a judgment for $5,000 with interest from the date of the death of the insured.

The company, in its answer, denied liability for the whole principal sum, and averred, among other things, that, by the terms of the policy, "in the event death is caused by intentional injuries inflicted by the insured or any other person, whether such person be sane or insane, or while fighting or in a riot, or by suicide, sane or insane, or by poison, or by inhaling gas or vapor, or while under the influence of intoxicants or narcotics, then the amount to be paid shall be one tenth of the principal sum, or $500; . .. that said James Whitfeld died from bodily injuries caused by a pistol shot intentionally fired by himself for the purpose thereby of taking his own life; that the cause of the death of said Whitfield was suicide." It was not averred in the answer that the insured contemplated suicide when applying for a policy.

The plaintiff demurred to the answer. The demurrer was overruled, and the plaintiff filed a reply, admitting that the insured "died from bodily injuries caused by a pistol shot fired by himself, and the cause of his death was suicide," but averring that the shot was fired and the suicide committed at a time when the insured was "incapable of realizing or knowing, and when he did not realize or know, what he was doing or the consequences of his

act."

that the insured committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause, that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void." Mo. Rev. Stat. 1879, § 5982; Id. 1889, § 5855; Id. 1899, § 7896.

Assuming as upon the record we must do—that, within the true meaning of both the statute and the policy, the insured committed suicide, without having contemplatcd self-destruction at the time he made application for insurance, the question arises whether the contract of insurance limiting the recovery to one tenth of the principal sum specified was valid and enforceable.

1. That the statute is a legitimate exertion of power by the state cannot be successfully disputed. Indeed, the contrary is not asserted in this case, although it is suggested that the statute "seemingly encourages suicide, and offers a bounty therefor, payable, not out of the public funds of the state, but out of the funds of insurance companies." There is some foundation for this suggestion in a former decision of this court, in which it was held that public policy, even in the absence of a prohibitory statute, forbade a recovery upon a life policy, silent as to suicide, where the insured, when in sound mind, wilfully and deliberately took his own life. Ritter v. Mutual L. Ins. Co. 169 U. S. 139, 154, 42 L. ed. 693, 698, 18 Sup. Ct. Rep. 300. But the determination of the present case depends upon other considerations than those involved in the Ritter Case. An insurance company is not bound to make a contract which is attended by the results indicated by the statute in question. If it does business at all in the state, it must do so subject to such valid regulations as the state may choose to adopt. Even if the statute in question could be fairly regarded by the court as inconsistent with public policy or sound morality, it cannot, for that reason alone, be disregarded; for it is the province The circuit court held that the plaintiff of the state, by its legislature, to adopt was not entitled to recover $5,000, but such a policy as it deems best, provided it only $500, and judgment for the latter does not, in so doing, come into conflict with amount was entered. 125 Fed. 269. That the Constitution of the state or the Conjudgment was affirmed by the circuit court stitution of the United States. There is no of appeals, 75 C. C. A. 358, 144 Fed. 356, such conflict here. The legislative will, and the case is here upon writ of certiorari. | within the limits stated, must be respected, "When the policy in suit was issued, and also when the insured committed suicide, it was provided by the statutes of Missouri that "in all suits upon policies of insurance on life hereafter issued by any company doing business in this state, to a citizen of this state, it shall be no defense

The case a jury having been waived in writing-was tried by the court upon an agreed statement of facts, one of which was that the insured died "from bodily injuries caused by a pistol shot intentionally fired by himself, for the purpose of thereby taking his own life; that the cause of the death of said Whitfield was suicide."

if all that can be said is that, in the opinion of the court, the statute expressing that will is unwise from the standpoint of the public interests. See Northwestern Nat. L. Ins. Co. v. Riggs, 203 U. S. 243, 51 L. ed. 168, 27 Sup. Ct. Rep. 126.

2. Did the courts below err in adjudging

494

*497

⚫496

that the policy in suit was not forbidden | sured commits suicide, is a waiver or nulliby the statute? Can an insurance com-fication of the statute which declares such pany and the insured lawfully stipulate a stipulation in a policy 'shall be void.' that, in the event of suicide, not contem- The statute is mandatory and obligatory plated by the insured when applying for a alike on the insurance company and the aspolicy, the company shall not be bound to sured. Its very object was to prohibit and pay the principal sum insured, but only a annul such stipulations in policies, and it given part thereof? Will the statute, in a cannot be waived or abrogated by any form case of suicide, allow the company, when of contract or by any device whatever. The sued on its policy, to make a defense that legislative will, when expressed in the perwill exempt it, simply because of such sui- emptory terms of this statute, is paramount cide, from liability for the principal sum? and absolute, and cannot be varied or waived by the private conventions of the parties." Upon writ of error to the circuit court of appeals the judgment was affirmed, that court saying: "The company refused to pay the full amount named in the policy, claiming that, by the express provisions of the policy, self-destruction by the insured, whether sane or insane, rendered the contract for the payment of $5,000 void, and the company was only bound to pay the amount which had been paid in assessments by the insured. This action was brought in the circuit court for the western district of Missouri, to recover the full sum of $5,000. The case was tried to the court, a jury being waived. The parties stipulated that the company was liable for the full amount claimed by the plaintiffs, unless excused by the clause in the policy providing that the same should be void in case of suicide;

We cannot agree with the learned courts below in their interpretation of the statute. The contract between the parties, evidenced by the policy, is, we think, an evasion of the statute, and tends to defeat the objects for which it was enacted. In clear, emphatic words the statute declares that in all suits on policies of insurance on life it shall be no defense that the insured committed suicide, unless it be shown that he contemplated suicide when applying for the policy. Whatever tends to diminish the plaintiff's cause of action or to defeat recovery in whole or in part amounts in law to a defense. When the company denied its liability for the whole of the principal sum, it certainly made a defense as to all of that sum except one tenth. If, notwithstanding the statute, an insurance company may, by contract, bind itself, in case of the suicide of the insured, to pay only one tenth of the principal sum, may it not lawfully contract for exemption as to the whole sum or only a nominal part thereof, and, if sued, defeat any action in which a recovery is sought for the entire amount insured? In this way the statute could be annulled or made useless for any practical purpose. Looking at the object of the statute, and giving effect to its words according to their ordinary, natural meaning, the legislative intent was to cut up by the roots any defense, as to the whole and every part of the sum insured, which was grounded upon the fact of suicide. The manifest purpose of the statute was to make all inquiry as to suicide wholly immaterial, except where the insured contemplated suicide at the time he applied for his policy. Any contract inconsistent with the statute must be held void. *In Berry v. Knights Templars' & M. Life Indemnity Co. 46 Fed. 441, which was an action upon a policy of life insurance, it appears that the policy, among other things, provided that, in the case of the self-destruction of the insured, whether voluntary or involuntary, sane or insane, the policy should be void. Judgment was given for the plaintiff. The circuit court said: is contended that the provision in the policy, declaring that it shall be void if the as

"It

Judgment in favor of plaintiffs having been entered for the full amount of the policy, the case was brought to this court upon writ of error. In our judgment, the court below ruled correctly in holding that the policy sued on was a contract made in Missouri, and, as such, that the provisions of § 5982 [the same as the statute now in question] are applicable! thereto; and therefore the judgment is affirmed, at costs of plaintiff in error." 1 C C. A. 561, 562, 569, 4 U. S. App. 353-355, 359, 50 Fed. 511, 512, 515.

In Knights Templars' & M. Life Indemnity Co. v. Jarman, 187 U. S. 197, 47 L. ed. 139, 23 Sup. Ct. Rep. 108, this court had occasion to consider the scope and effect of the statute here in question. That was an action upon a policy of life insurance for $5,000. A recovery for the whole sum was sought, but the company defended the action upon the ground that the provision in the statute that it should be no defense that the insured committed suicide related only to cases where he took his own life voluntarily, while sane, and in full possession of his mental faculties; that the provision in the policy that "in case of the self-destruction of the holder of this policy, whether voluntary or involuntary, sane or insane, this policy shall become null and

499

void,' applies, and exonerates the company | If one holds a general life policy and from all liability beyond that provided in an accident policy, and is killed by the policy, 'that, in the case of the suicide of the holder of this policy, then this company will pay to his widow and heirs or devisees such an amount of his policy as the member shall have paid to this company on the policy in assessments on the same, without interest.'' This view of the statute was not accepted in the circuit court, and there was judgment against the company for the whole sum insured. That judgment was affirmed here upon certiorari to the circuit court of appeals.

lightning or commits suicide, so that he may be said to have died by accidental means, both the companies should pay, and the stipulation against liability in the event of suicide in the policies should be no more a defense against the suit upon the accident policy, providing against death from accidental cause, than against the policy which goes further and covers death from other causes as well. No such exception or exemption is found in the plain and comprehensive language of § 5855. . . . No rule of construction, short of one applied for distortion and destruction, can relieve accident insurance companies, issuing policies of insurance on life in this state, from the operation and influences of § 5855, which, in plain and unambiguous terms, declares that in all suits upon policies of "insurance on life thereafter issued, it shall be no defense that the assured committed suicide, unless it shall have been shown, to the satisfaction of the court or judge trying the cause, that the insured contemplated suicide at the time of making his application for the policies; all stipulations in the policy to the contrary being void."

A leading case on the general subject is Logan v. Fidelity & C. Co. 146 Mo. 114, 119, 122, 123, 47 S. W. 948, which was a suit upon a policy which, according to the answer in the case, contained stipulations and covenants to the effect that, in the event of fatal injuries to the assured, wantonly inflicted upon himself, or inflicted upon himself while insane, the company's liability under its policy should be a sum equal to the premiums paid, and that sum the policy provided should be in full liquidation of all claims under it. The question before the court was whether or not the statute here in question applied to such a policy as the one there in suit. The trial In Keller v. Travelers' Ins. Co. decided by court instructed the jury to return a ver- the St. Louis court of appeals, 58 Mo. App. dict for the full amount of the policy, with 557, 560, 561, we have a decision very much interest. The court said: "The error into in point. That was an action on an insurwhich respondent has fallen is in assuming ance policy for $2,500. The company dethat § 5855 [the statute now in question] fended upon the ground that, by the terms was intended to affect a particular line, of the policy, if the insured died of suicide, class, or department of insurance, as the whether the act be voluntary or involunsame has been classified for legislation. The tary, it should be liable for the then full real object of the section, as the clear terms net value of said policy per the American of its language express, is to affect all poli- Experience Table of Mortality and 41⁄2 per cies of insurance on life from whatever cent interest, and no more, and that the class, department, or line of insurance the same should be paid in manner and form as policy may be issued, or by whatever name provided in the policy for the payment or designation the company may be known. thereof in the event of death. The defense It is policies of a given kind, and not com- was that the insured committed suicide, panies of a class, that are to be affected by and that the full net value of the policy, the provisions of § 5855. The section was according to the contract, was only $814.50, enacted clearly to protect all policy holders and no more. The defense was overruled of insurance on life against the defense that and judgment given for the principal sum. the insured committed suicide, all provisions That judgment was affirmed in the court of in the policies to the contrary notwith-appeals, the court saying: "The plain purstanding, unless, as provided in the section, pose of the statute, supra, was to preit can be shown that the insured con- vent the insertion in policies of life insurtemplated suicide at the time he made ap-ance of exceptions to liability on the ground plication for the policy. . . . When a policy covers loss of life from external, violent, and accidental means alone, why is it not insurance on life? Such a provision in-plication for the policy.' This was, in efcorporated in a general life insurance policy admittedly would be insurance on life: then why less insurance on life because not coupled with provisions covering loss of life from usual or natural causes as well?

of the suicide of the insured, unless it could be proven 'that the insured contemplated suicide at the time he made the ap

fect, a legislative declaration of the public policy of this state. That it was intended to limit the power to contract for a lesser liability in cases of death by suicide, not within the limitation expressed in the stat