ACCIDENT INSURANCE 531
floor and had to go up two flights of stairs to reach it. It was light, there being a skylight in the room. The time was between 12 and 1 o'clock. Miss Edwards was within about an arm's length of Mr. Cady as he went over the railing. He threw himself over, as she said.
There was some conflict of evidence as to whether the assured was afflicted with a local disease at the time of, or within one year prior to the issuance of the policy.
At the close of the evidence defendant's counsel moved for the direction of a verdict, which was refused. The cause was submitted to the jury, resulting in a verdict in favor of the plaintiff.
MARSIIALL, J. * *
Error is assigned because the court admitted evidence as to what kind of a fever Mr. Cady was afflicted with prior to his death, and as to whether he was in his right mind when he left the room. The evidence was not prejudicial since it was conceded that if he committed suicide, sane or insane, there could be no recovery. Moreover, we are unable to see why the evidence was not proper as bearing on the question of whether there was a suicidal intent on the part of \Ir. Cady at the time he committed the act causing his death, which intent was necessary to suicide, as will be hereafter seen.
The court refused to give this instruction asked by appellant's counsel: "It is immaterial whether Frank A. Cady was delirious or not at the time immediately preceding his death and at the time the went over the railing, if his act in going over the railing was voluntary on his part—that is, that he intended to throw himself over the railing in the manner as shown by the evidence"—but instructed the jury in substance that suicide, sane or insane, involved an executed purpose to take one's own life, and that if Cady went over the railing pursuant to a design to take his own life, he died by suicide, but if when he committed the act, though it was voluntary and involved carelessness, if it was not with a conscious purpose to take his life; if by reason of his mental condition he did not appreciate the physical nature of the surroundings and consequences of his act and intend to take his life, the result was not suicide within the meaning of the policy.
Whether the court committed error in refusing the requested instruction and instructing the jury as indicated, is ruled by Pierce v. Travelers' Ins. Co., 34 Wis. 389. The position which the court there took in respect to the meaning of a clause in a policy of insurance substantially like the one in question, is unmistakable, and has not been departed from by any subsequent decision.
The effect of the decision above referred to is that if one takes poison by mistake, or steps into an elevator shaft, not having in mind for the time being its existence, or falls from a window or any place involving danger while walking in his sleep or flying from imaginary danger, he not having any mental purpose of self-de-