Chester et al. v. Wellford et al.

do, by a learned State judge, who, somewhat loath, perhaps, to part with his own, has in a very able opinion, cited in argument here, denied, in such a case, any jurisdiction in this court over a controversy between residents of the same State. See Smith v. St. Louis Mutual Life Ins. Co., 2 Tenn. Ch. Rep. 656, 665. Mr. Justice MILLER, in Taylor v. Rockafeller, 6 Reporter, (Hurd & Houghton, publishers, Aug. 21, 1878,) 226, has intimated a contrary opinion, but I need not now decide the point.

ques

I cordially assent to what has recently been said by the Supreme Court of Alabama as to the considerations which should actuate the courts in the determination of these tions: Per MANNING, J.-"The acts of Congress for the removal of causes from the courts of the States to those of the United States, require on the part of the judges of either government, who may have to consider and act under them, candor and good temper. Jealousy of jurisdiction, when too susceptible of alarm and resentment, is apt to hurry those under its influence into error. The institutions of both governments are established for the good of all; and it is the right of all to have them preserved and upheld in the performance of their respective proper functions. When, therefore, cases arise in which the question to be decided is, whether the cognizance of them belongs to the State Courts or the Federal Courts, it is the dictate of patriotism, as well as of law, that jurisdiction shall be cheerfully declined by those to which it does not pertain, and exercised without offensive arbitrariness by those entitled to exercise it. According to the Supreme Court of the United States, through the late Chief Justice CHASE, 'It may be not unreasonably said, that the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution, as the preservation of the Union and the

Wolff v. The Conn. Mut. Life Ins. Co.

maintenance of the National Government.'

Texas v. White,

7 Wall. 700." Ex parte Grimball, 8 Cent. L. J. 152. The motion to remand is denied.

On the point that after order pro confesso it is not too late for petition for removal, read Hunter v. Royal Canadian Ins. Co.. The Reporter, vol 7, p. 37.

HELENA WOLFF v. THE CONNECTICUT MUTUAL LIFE INSURANCE CO.

CIRCUIT COURT-EASTERN DISTRICT OF MICHIGAN-MARCH, 1879.

Although neither an act of suicide, nor an attempt, nor a threat to commit suicide alone creates such a presumption of insanity as would justify a jury in finding a party insane, such an act may properly be considered in connection with the previous demeanor and conduct of the party as an item of testimony tending to prove insanity.

Motion for a new trial.

The action was upon a policy of insurance, which insured the life of Henry Wolff, in the amount of $2,000. Defense was made that the assured committed suicide; which was a risk not covered by the policy; to which the assured replied that he was insane at the time he took his life. The case was brought before a jury and a verdict rendered for the full amount of the policy and interest.

The motion was made for a new trial upon the ground that the evidence admitted to go to the jury to the effect that the assured was insane at the time he took his life, was improper.

Wolff v. The Conn. Mut. Life Ins. Co.

The evidence of insanity consisted of certain eccentric and temporary hallucinations, occurring from about a year and a half up to about three months before the suicide; the first of which occurred about a year and a half before his death when he was walking home, at noon, with his brother. The latter relates the incident as follows: "It had rained before, and there was a puddle of water standing on the sidewalk, and when he came there he slapped me on the arm and says, 'See! there is money, can't you see? I will make money out of that. That is the biggest thing in the world to make money out of.' I laughed at him, and I says, 'What is the matter with you, are you out of your mind, or what ails you?' 'Don't you see that dog,' he says, 'he is chasing ine. Why he follows me all the time.' There was no dog there. He went to dinner as usual and returned to his work in the afternoon." At another time he awoke his wife in the night and wanted to know if she didn't hear singing outside. He said he thought he heard them singing just as in church. It appears that no person was there. Shortly after this incident he retired and went to sleep, and in the morning was up about his business as usual. His wife relates another occurrence as follows: "Then again he got up in the middle of the night when it was raining and thundering. When I woke up he was off. I didn't know where he was. I got up and made the light and waited about an hour and then he came, and he had been up on top of the house and was all wet. I didn't know where he was, and I asked him and he said he had been on top of the house. He did that two or three times in one summer, the last summer of his life. He said it was very nice on top of the house when it rained; he liked it. * **Again: he woke up one night and wanted to go off; I had just been sick and I could not follow him. He got up in the middle of the night, in his night clothes-as I was I could not go-and took the key out of the door, and he

Wolff v. The Coun. Mut. Life Ins. Co.

got up and went off. He just put on slippers and went off with nothing on. About five o'clock in the morning a policeman came and wanted some clothes for my husband. He said they had him in the police station and they wanted some clothes for him to put on; he often did that nights. This was in the summer before his death." At another time his brother relates that "he came to my house very early in the morning, about five o'clock, knocked on the door and I got up out of bed and asked him what was the matter. He says, Can you see all those men out there? All these men want to kill me, every one of them. Don't you see them? Every one, straight up there on the whole street want to knock me down.' I says, 'What is the matter with you. Come here and sit down.' My wife gave him a cup of coffee and he sat down, but he talked of different things, took his coffee and went off. He went to work after breakfast as usual." On another occasion he came into the store in the middle of the afternoon, locked the door, and taking the key, went up stairs where his brother was and made some remarks betraying hallucination and temporary derangement. At another time he came up stairs where his men were at work and compelled one of the men to walk up and down the room briskly forty or fifty times. This was because he thought he had been slow about some errand. He bought a horse, after that, for $120, but not being satisfied tried to sell him to his clerk for twenty-five cents. The clerk paid the money. At night when he went home he found the horse at his stable, Wolff having ordered his teamster to take him there. The next day the clerk says, "I told him I was only joking when I gave him the twenty-five cents; that I would like to have him take the horse back; No,' he said, 'I was sick of my bargain;' he did not want the horse; so I kept him. I offered it to him several times. He would not take it back until after he died, I gave it back to Mrs. Wolff." At another

Wolff v. The Conn. Mut. Life Ins. Co.

time his sister-in-law came with her husband, on Sunday, to his house. Wolff told her he did not want her there, and she must go home. This seemed strange to his wife as be had always before been glad to see her when she came. On the day he died, a female acquaintance and friend of the family came to visit at his house. Wolff sent her home, so much to his wife's chagrin that she went home with her. On her returning she found her husband lying upon the sofa with a discharged pistol in his hand. The testimony showed that several times within this time he threatened to take his own life, declaring to his brother that he would not live longer. He had returned home from his work on the occasion of dismissing the friend of his wife, as above stated, and soon after shot himself. This was, substantially, all the testimony tending to show insanity.

Messrs. Trowbridge & Dowling, for plaintiffs.

Messrs. C. I. Walker and A. B. Maynard, for defendant.

BROWN, J.-In considering whether there was sufficient evidence of insanity to be submitted to the jury, it was insisted at the outset of the argument that the act of suicide in itself was no evidence of mental aberration, and, indeed, it was conceded that, standing alone, it would not be sufficient proof to justify a verdict for the plaintiff. I find no case which goes further than this. In Terry v. The Insurance Co., 1 Dill. 403, and Coverston v. The Conn. Mutual Life Ins. Co., 3 Ins. L. J. 113, it is stated, "There is no presumption of law, prima facie or otherwise, that selfdestruction arises from insanity." In Moore v. The Conn. Mut. Life Ins. Co., 3 Ins. L. J. 444,1 Judge LONGYEAR Says, "The fact of suicide is not, in itself, evidence of insanity."

11 Flippin, 363.