
    Mary Jane Darrows, Resp’t, v. Family Fund Society, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 1886.)
    
    1. Insurance (life)—Action on policy—Suicide not a. violation of the
    CRIMINAL LAW—PENAL CODE, § 173.
    The defendant is a corporation doing the business of life insurance on the assessment plan. This action is brought on a policy of insurance by which the defendant within sixty days after evidence of the death of D was to pay the plaintiff §5,000 from "the death fund of the society at the time of said death. Provision was also made that when the death fund should be insufficient a call should be made on members, etc. The policy further provided that it should he void if the member named therein “shall die * * * in violation of, or attempt to violate any criminal law of any state or country in which the member herein may be.” D, the member named in the policy, committed suicide. Held, that the deceased did not die in violation of or attempt to violate .any criminal law of the state, although the attempt to commit suicide is made a crime, Penal Code, 173 yet if successful it is suicide and no crime. Leabned, P. J., dissenting.
    S. Same—When insufficiency of death fund no defense.
    
      Held, that if there was money in the death fund-at the time of D’s death, from which plaintiff’s claim could he payable, the insufficiency of the death fund would be no defense to an action on the claim, although there had been a diversion of the funds to other objects.
    
      Pond, French & Brackett, for resp’ts; George Wilcox, for appTt.
   Landón, J.

The question is whether the insured died “in violation of, or attempt to violate, any criminal law the United States, or of any state or country in which the member may be.” I think that suicide, or the successful attempt to commit it, is not made a crime by our Penal Code.

“A crime is an act or omission forbidden by law and punishable by,” etc. Section 3. “Although suicide is deemed a grave public wrong, yet from the impossibility of reaching the successful perpetrator, no forfeiture is imposed.” Section 173.

Attempting suicide is made a crime. Section 178. It is thus defined: “A person who, with intent to take his own life, commits upon himself any act dangerous to human life, or which if committed upon or towards another person and followed by death as a consequence, would render the perpetrator chargeable with homicide, is guilty of attempting suicide. Section 174.

It seems to follow that the attempt to commit suicide, if successful, is suicide, and no crime, but only “a grave public wrong,” but if unsuccessful is a crime.

Section 685 providing that “A person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated, unless the court, in its discretion, discharges the jury and directs the defendant to be tried for the crime itself,” can from the nature of the case have no application to an attempt to commit suicide. The attempt is the crime itself. To bring it within the section there should be an attempt to commit suicide. If there is an attempt to commit suicide, the success of the attempt does not consummate the crime, but avoids it. How could the jury be discharged and the defendant be tried for the crime itself? What crime? The section must be limited to the cases to which it can apply.

The objection that this action being at law could not be maintained, because there was not sufficient proof of money in the death fund of the defendant, is satisfactorily answered in the opinion of the presiding justice.

I advise an affirmance of the judgment and order.

Bockes, J., concurs; Learned, P. J., dissents.

Learned, P. J.

(dissenting).—This is an action on a policy of insurance, or certificate of membership, or bond, issued by defendant to James H. Darrows. The defendant is incorporated under chapter 175, Laws of 1883, and does the business of life insurance on the co-operative or assessment plan. By the policy of insurance (or bond, as defendant calls it), the defendant, within sixty days after evidence of the death of Darrows, was to pay to the plaintiff $5,000 “from the death fund of the society at the time of said death, as hereinbefore mentioned and provided.” It was further provided therein, that whenever the death fund is insufficient, a call should be made on members; eighty per cent of the amount received should be used for payment of death claims, and twenty per cent should be set apart as a reserve fund to meet any contingency by reason of extra mortality. Ho special sum is mentioned which is to be called for in case of deficiency in the death fund.

It must be understood that so much shall be called for that eighty per cent shall be sufficient to pay the death claim.

It is further provided in the bond, that it shall be void if the member named therein “shall die * * * in violation of, or an attempt to violate any criminal law * * * of any state or country in which the member herein may be.”

Two defenses are set up: First, that there was not sufficient money in the death fund. Second, that Darrow committed suicide. The judge excluded evidence on the latter point, on the ground it was no defense, and ordered a verdict for plaintiff, and the defendant appealed.

In considering the second defense, we remark that the case of Fitch v. The American Popular Life Ins. Co. (59 N. Y., 557) is not to the point. There was nothing in that policy in that case which made suicide a defense. Patrick v. Excelsior Life Ins. Co. (67 Barb.. 202) does not apply. That held that “the known violation of any law” was a phrase which did not include suicide.

It is not necessary to consider that suicide was a felony at common law, punishable by forfeiture of goods (4 Bl. Com., 189), because section 2 of the Penal Code declares what shall be crimes after that code takes effect.

Sec. 174 declares that any person who with intent to take his own life, commits upon himself any act dangerous to human life, or which if committed upon or towards another person and followed by death as a consequence would render the perpetrator chargeable with homicide is guilty of attempting suicide. Section 178 provides for punishment. Section 685 provides that a person may be convicted of an attempt to commit a crime, although it appears on the trial < that the crime was consumated, unless the court in its discretion, discharged the jury and directs the defendant to be tried for the crime itself. Hence it follows under the Penal Code that the attempt to commit a crime is not so merged in success that the defendant may not still be punished because he is dead. That is the case with every criminal, He cannot be punished for his crime, if he die before trial.

Evidence was offered at the trial which, if admitted, might have shown that the deceased violated the above cited section 174 of the Penal Code. If, with intent to take his own life, he took poison, then he was guilty of the crime specially declared by that section. There is a general provision in section 686, as to unsuccessful attempts to commit crimes, regulating the punishment by reference to the punishment imposed on the crime itself.

But section 174 is an independent enactment declaring certain acts to be crimes; and section 178 declares the punishment with no reference to the crime said to be attempted.

If then the deceased had done the act of which evidence was offered, and he had lived for several months afterwards, he might during his life have been indicted and convicted under that section, 174.

It must be noticed that the provision of the policy specifies death in violation of a criminal law, and also death in ah attempt to violate such law. Either of these makes void the policy.

Nor is it therein expressly required that the attempt to violate be itself a crime. Now the evidence excluded tended to show a violation of a criminal law and not merely an attempt to violate. Attempting suicide is itself a crime, and not accurately an attempt to commit a crime. Sec. 34. And the reason why the law was thus drawn was probably from the doubt whether suicide was a crime. The question then arises, did the deceased die in violation of a criminal law. Of course the language used in the policy cannot have a literal meaning.

It cannot mean to express a case where the insured was forbidden to die by some criminal law, and where his death was, therefore, in violation of the law.

It must indicate a case where the death occurs in consequence of or in the course of the violation of a criminal law. As for instance, if the insured were committing a burglary and were killed in the act, and in consequence thereof/ The object aimed at in this provision of the policy is that the company shall not be liable, when, the death of the insured is his own criminal fault. Thus, the other circumstances which make the policy void are death in a duel or by the hands of justice.

By analogy with these we may see that to die in violation of a criminal law means to die by reason of, or in consequence of, or in course of a violation of a criminal law. Bow, the evidence excluded tended to show that the deceased committed the crime of attempting suicide, and that in consequence of such attempt he died.

It is agreed by plaintiff that one cannot die in the attempting suicide. But may not one die in the commission of a burglary? Does not one die in violation of law when he dies in direct consequence of such violation—what other reasonable meaning can this provision have ? It is argued for the plaintiff that the evidence shows that the deceased not only committed the crime of attempting suicide, but that he succeeded ; and the plaintiff argues that suicide is not a crime under the definition in section 3, Penal Code, and the statement in section 173.

But the answer is that the Penal Code, as already shown, makes certain acts to constitute a certain crime, viz., that of attempting suicide; and the person who commits those acts is at the very time of committing guilty of that crime, although it may be that the consequence of this crime will be such that he cannot be punished. The man who attempts to commit a murder is none the less guilty if he himself be killed in the attempt, and if he therefore cannot be punished. If this deceased had thrown a dynamite bomb into a crowd, with intent to kill some person, and the explosion had killed no one but himself, would he not have died in the attempt to violate a criminal law ?

The plaintiff argues that if the deceased succeeded in committing suicide, he passed beyond any crime and did that which by the Penal Code is no crime. But (assuming the evidence to prove what is claimed) he did the acts set forth in section 174; that is, with intent to take his own life, he committed on himself an act dangerous to human life; therefore, he committed the crime by that section defined. If he died a month or an hour afterward, had he any the less committed a crime ?

I am of the opinion that evidence tending to prove that the deceased committed the crime of attempting suicide, and that he died in consequence thereof, should have been admitted. There was a general exclusion of evidence, and therefore we do not specify any.

On the other point, viz.: that there was not sufficient money in the death fund. These facts must be noticed. Darrows died December 11, 1885; a call was made March 4, 1886, reciting Waa’s death, which showed a balance on hand of $1,807.58. This call produced for the death fund $11,282.48. Waa’s claim was $5,000. By a subsequent call of May 18, 1886, it appears that part of the residue had been applied to a Dewey claim and on this claim. The society does not make a call on every death, but only when the death fund is insufficient. The call made upon Waa’s death, after paying his claim, would place in the death fund over $8,000. If there was money in the death fund from which plaintiff’s claim could be payable (and it became payable about March 14, 1886,) then there would be no defense on that ground, though there had been a diversion to other objects. There was, we think, evidence enough, in- the absence of any contradictory evidence, to establish the plaintiff’s case on this point.

For the reasons above given, I think there should be a reversal of the judgment and a new trial, costs to abide the event.

Judgment and order affirmed.  