SELF DESTRUCTION OF INSURED   469

it is a provision allowed by law, no one denies. We are to say from these words what the parties must have intended, and we cannot properly say that additional words having no meaning were inserted in the contract, and if they mean any thing it is just what the words commonly import, and that is, if death ensues from any physical movement of the hand or body of the assured proceeding from a partial or total eclipse of the mind, the insurer may go free. We are not altogether unmindful of the force of the proposition that a man does not die by his own hand who has not sufficient mind to will his own death, and it is not, perhaps, entirely easy to see in what precise words in our language the idea may be accurately and artistically expressed that a totally insane man may take his own life. But the question seems to involve more—the refinement of language—than the application of practical sense, and we are of the opinion that, in the common judgment of mankind, it will be considered that when a totally insane man blows his brains out with a pistol that he will be said to have died by his own hand within the meaning of a policy such as we have now under consideration * * * a new trial must be granted. * * *

EARL, C. (dissenting). I do not think the judge erred in submitting to the jury the question, whether the death of the assured was caused by an accidental discharge of the pistol. No witness was present when the pistol was discharged, and the precise circumstances under which the discharge took place are unknown. We have the mental condition of the deceased; the facts that the pistol was purchased by his son without his knowledge; that he cautioned his son against leaving it about for fear of accident; that he did not know where it was kept, or that it was loaded; that he was wholly unfamiliar with its use, and had never been known to fire or use one; that it was a self-cocking pistol which would go off at a touch; and that the fatal wound was in his mouth. While it is extremely improbable, from all the circumstances, that the discharge was purely accidental, in the ordinary sense of the term, the facts do not exclude such an hypothesis, and it was therefore proper for the judge to submit them to the jury. (Mallory v. The Travelers' Ins. Co., 47 N. Y. 52.) There was nothing in the complaint or proofs of loss which absolutely precluded the plaintiff from claiming that the death was purely accidental, and there was no claim upon the trial that plaintiff was thus precluded. As it is not claimed that the death of the assured by an accidental discharge of the pistol while in his hand, was a death "by his own hand or act," within the meaning of the policy, it remains to be determined whether every case of self-destruction, not accidental, is, within the meaning of the policy, "a death by his own hand or act."

It is admitted by the learned counsel for the plaintiff that if the assured intentionally took his own life by his voluntary act, then the policy was avoided, whether he was sane or insane. But it is