
    Gibson v. American Mutual Life Insurance Co.
    
    
      Life-insurance.—Attending physician,—Circumstantial evidence.—Presumption.
    
    A retired, physician, who is present when an accident occurs, which results in death, and examines the injured person, at the request of a neighbor, is not an attending physician, within the meaning of a policy of life-insurance.
    It is not competent to show that the deceased was an infidel, in order to draw the inference of self-destruction; such inference is merely speculative.
    Appeal from the general term of the Supreme Court, where a judgment entered upon a verdict in favor of the plaintiff had been affirmed.
    This was an action of Catharine S. Gibson against the American Mutual Life Insurance Company, upon a policy of insurance upon the life of her deceased husband, Marcus W. Gibson, dated the 8th March 1858, for the term of seven years, payable in case of death to the widow. The conditions required, among other things, that the proofs of death should contain “the name of the physician or physicians and_ other persons in attendance, the place and date of burial, the affidavit of the medical attendants,” &c.
    Gibson died on the 24th March 1860, of a gun-shot wound. It was proved by his declarations, that “he was crossing on a log, with his gun in his hand ; that his foot slipped, and he fell off, and the gun went off and shot him through the bowels.” After receiving the wound which caused his death, Gibson was brought to his own house, and lived about twenty-four hours.
    
      The defences set up in the answer and insisted upon, on the trial, were: 1. That the proof furnished “ omitted to state truly the cause of .the death of said Marcus,’ and 2. That “the said Marcus W. Gibson committed suicide, by designedly shooting and wounding himself, with the design and for the purpose of producing death, of which shooting and wounding said Marcus died.”
    The proofs furnished, and which were produced by the defendant on the trial, and offered in evidence, were the certificate of the officiating clergyman at the funeral of Gibson, the statement of John G. Meachem, the attending physician of Gibson, during his last sickness, made in answer to printed interrogations furnished by the defendant, and the ' affidavit of the plaintiff. The facts in relation to the medical attendant are stated in the opinion.
    *’*'n course ^ie trial, the defendant put the following question to one of the witnesses: “Have you an opportunity of knowing his religious sentiments ?” and proposed to show that Gibson was an infidel. This evidence was excluded by the judge, and the defendant excepted to his decision. To another witness, the defendant put the question: “ Hid you know his religious sentiments?” and offered to show that Gibson was an atheist. This evidence was excluded, and the defendant excepted.
    The jury rendered a verdict in favor of the plaintiff, and the judgment entered thereon having been affirmed at general term, the defendant appealed to this court.
    Munger, for the appellant.
    
      Thayer, for the respondent.
    
      
       Also reported in 5 Trans. App. 261.
    
   Hunt, C. J.

In his elaborate argument, the defendant’s counsel insists, as his first ground of appeal, that the preliminary proofs were deficient, in that they did not contain the affidavit or certificate of Doctor Bartlett as one of the attending physicians. Although he had. been a practising physician, Doctor Bartlett was not such, at the time of the death of Gibson, and had not been for some years previously. He was one of the sympathizing friends, who, on occassions of accident or death, are present to give aid and comfort. Mrs. Gibson, immediately on the arrival of her husband, dispatched a messenger for Doctor Meachem, the family physician. *In the meantime, the wounded man being in great pain, some person suggested that Doctor Bartlett had better make an examination of his wounds. Mrs. Gibson assenting, he did so, and he also gave him morphine to relieve his pain. Upon the arrival of Doctor Meachem, he took charge of the case. It does not appear, that Doctor Bartlett acted in any other than a friendly capacity, or that he has at any time desired or expected compensation for his services. I do not know that he could claim compensation in money for his kind offices, any more than could the other neighbors present and assisting. The service was charitable and voluntary. The defendant did not make any request that this question should be submitted to the jury, but claimed, as a matter of law, that Doctor Bartlett was an attending physician. This claim cannot be sustained.

The question in contention at the circuit was, whether the death of the deceased was accidental, or whether it was a case of intentional self-destruction. To aid in elucidating this inquiry, the defendant insisted, that he had the right to show that the deceased was an infidel, and an athiest, and thence to draw an argument in support of the theory of intentional suicíde. The defendant insists upon the competency of this evidence, upon the further ground, that every man is presumed to be a Christian; that the Christian religion prohibits self-slaughter; that this presumption of Christianity, and its influence, might opérate upon the minds of the jury, and should be allowed to be overthrown by the testimony offered.

It is not necessary to say how far, or how precisely, the presumption of personal Christianity exists. That we live in a Christian country is certainly true. It is acknowledged by the laws of the land, which prohibit blasphemy and profanity, and enjoin the observance of Sunday. That we believe in a governing Providence, by whom crime will be punished and virtue rewarded, is assumed in every oath that is administered. To say, however, that every man is presumed to be a personal Christian, upon whose mind, and upon whose actions, the precepts of the Gospel exercise an influence, is so against our common experience, that it cannot be assumed as a legal principle. It may be argued, however, that a man may hold this belief, although his actions be not at all times influenced by it. This is probably true, and here arises the difficulty in the admission of the evidence offered.

Consider the great variety of creeds held by thoso calling themselves Christians. We find not only the Roman Catholic, the Episcopalian, the Presbyterian, the Methodist and Baptist, but a large class who believe .in the punishment of sin in this world only, and the ultimate salvation of the whole human race; these are "all Christians. They all acknowledge the inspiration of the Holy Scriptures, and the obligation of its commands. In what way, and how far do these systems of belief operate upon the conduct of man ? Is it certain, that he who believes inf the eternal punishment of the impenitent, in a future world, is a better observer of the laws of his country, and more free from actual crime, than he who denies that doctrine? Or, is it certain, that he who believes in the final salvation of all men, would refrain from an offence which he would have committed, had he believed that there was no future state? No man can answer with certainty. Does the fact that a man believes in the Christian religion, furnish legal evidence, that in a particular case, he has not violated the laws of God or of his country ? Experience teaches us that not only believers in the Christian religion, but those who for years have given the highest evidence that they would receive the ultimate reward of the true Christian, are guilty of grave offences, moral and legal. The law takes man as he is, with his passions, his appetites, his infirmities, and with his education, his moral training, and his religion. With all these elements, his life is a struggle, and a contradiction. What his actions will be, can be determined by no form of belief, and by no fixed principle of law. Each man’s case will be different from that of his neighbor, and, from day to day, will be different from his own.

*The “infidel” is one who does not recognise ^ the inspiration or obligation of the Holy Scriptures, or the generally recognised features of the Christian religion. The atheist” is one who does not believe in the existence of a God. The result of this absence of belief upon his actions, is speculative entirely. Does his soul shrink back at the idea of annihilation ? We know not. He may not admit the existence of a soul; and the eternal rest of the grave may form his idea of paradise. On the one side, would stand the idea of annihilation, and on the other, that of an offended God. Who can say, as matter of fact, which would produce the strongest effect on the human mind ? Is there any feeling or principle stronger than that instinctive dread of death which all men feel, and which neither the faith of the Christian, nor the reasoning of the atheist, can overcome ? It does not depend upon life or faith; it is instinctive, and common to all men.

It would, in my judgment, be incompetent to impeach one’s conduct, and to adjudge new motives and principles upon the proposed idea. To adjudge that a man’s belief in Christianity will prevent, or-tend to prevent, the commission of suicide, or that atheism will produce, or tend to produce, a contrary effect, is to adopt a principle more subtle and speculative, more uncertain and more remote, than the law can recognise. If a sound argument, it would be applicable, to some .extent, in every case where character was involved. Would it be a just ground of impeachment of the good character of a party to an action, that he is an infidel or an atheist ? If Gibson had been the plaintiff in an action of slander, could his opponent have reduced his damages by showing his belief in these respects ? If he had been indicted for murder, and the question of character had been introduced into the issue, could the prosecution have attacked him, by showing his skepticism? Or could he have sustained his character, by proof that he held a religious belief? Such a suggestion finds no countenance in the authorities. Conduct and life, as distinguished from belief, give the standard of character. In law, it would be a totally immaterial circums*’ance' aff°rds no certain or practical test of conduct. The offer in the present case is based upon the same idea, and the argument in its defence, although plausible and attractive, cannot be sustained. Judgment should be affirmed, with costs.

Judgment affirmed.  