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that the policy in suit was not forbidden | sured commits suicide, is a waiver or nulliby the statute? Can an insurance com- fication of the statute which declares such pany and the insured lawfully stipulate a stipulation in a policy 'shall be void.' that, in the event of suicide, not contemplated by the insured when applying for a policy, the company shall not be bound to pay the principal sum insured, but only a given part thereof? Will the statute, in a case of suicide, allow the company, when sued on its policy, to make a defense that will exempt it, simply because of such suicide, from liability for the principal sum?
amount which had been paid in assessments by the insured. This action was brought in the circuit court for the western district of Missouri, to recover the full sum of $5,000. The case was tried to the court, a jury being waived. The parties stipulated that the company was liable for the full amount claimed by the plaintiffs, unless excused by the clause in the policy providing that the same should be void in case of suicide;
The statute is mandatory and obligatory alike on the insurance company and the assured. Its very object was to prohibit and annul such stipulations in policies, and it cannot be waived or abrogated by any form of contract or by any device whatever. The legislative will, when expressed in the peremptory terms of this statute, is paramount and absolute, and cannot be varied or We cannot agree with the learned courts waived by the private conventions of the below in their interpretation of the statute. parties." Upon writ of error to the circuit The contract between the parties, evidenced court of appeals the judgment was affirmed, by the policy, is, we think, an evasion of the that court saying: "The company refused to statute, and tends to defeat the objects for pay the full amount named in the policy, which it was enacted. In clear, emphatic claiming that, by the express provisions of words the statute declares that in all suits the policy, self-destruction by the insured, on policies of insurance on life it shall be whether sane or insane, rendered the conno defense that the insured committed sui-tract for the payment of $5,000 void, and cide, unless it be shown that he contem- the company was only bound to pay the plated suicide when applying for the policy. Whatever tends to diminish the plaintiff's cause of action or to defeat recovery in whole or in part amounts in law to a defense. When the company denied its liability for the whole of the principal sum, it certainly made a defense as to all of that sum except one tenth. If, notwithstanding the statute, an insurance company may, by contract, bind itself, in case of the suicide of the insured, to pay only one tenth of the principal sum, may it not lawfully contract for exemption as to the whole sum or only a nominal part thereof, and, if sued, defeat any action in which a recovery is sought for the entire amount insured? In this way the statute could be annulled or made useless for any practical purpose. Looking at the object of the statute, and giving effect to its words according to their ordinary, natural meaning, the legislative intent was to cut up by the roots any defense, as to the whole and every part of the sum insured, which was grounded upon the fact of In Knights Templars' & M. Life Indemsuicide. The manifest purpose of the stat- nity Co. v. Jarman, 187 U. S. 197, 47 L. ed. ute was to make all inquiry as to suicide 139, 23 Sup. Ct. Rep. 108, this court had ocwholly immaterial, except where the in-casion to consider the scope and effect of sured contemplated suicide at the time he applied for his policy. Any contract inconsistent with the statute must be held void. In Berry v. Knights Templars' & M. Life Indemnity Co. 46 Fed. 441, which was an action upon a policy of life insurance, it appears that the policy, among other things, provided that, in the case of the self-destruction of the insured, whether voluntary or involuntary, sane or insane, the policy should be void. Judgment was given for the plaintiff. The circuit court said: "It is contended that the provision in the policy, declaring that it shall be void if the as
Judgment in favor of plaintiffs having been entered for the full amount of the policy, the case was brought to this court upon writ of error. . . . In our judgment, the court below ruled correctly in holding that the policy sued on was a contract made in Missouri, and, as such, that the provisions of § 5982 [the same as the statute now in question] are applicable thereto; and therefore the judgment is affirmed, at costs of plaintiff in error." 1 C. C. A. 561, 562, 569, 4 U. S. App. 353-355, 359, 50 Fed. 511, 512, 515.
the statute here in question. That was an action upon a policy of life insurance for $5,000. A recovery for the whole sum was sought, but the company defended the action upon the ground that the provision in the statute that it should be no defense that the insured committed suicide related only to cases where he took his own life voluntarily, while sane, and in full possession of his mental faculties; that the provision in the policy that "in case of the self-destruction of the holder of this policy, whether voluntary or involuntary, sane or insane, this policy shall become null and
void,' applies, and exonerates the company | If one holds a general life policy and from all liability beyond that provided in an accident policy, and is killed by the policy, that, in the case of the suicide of the holder of this policy, then this company will pay to his widow and heirs or devisees such an amount of his policy as the member shall have paid to this company on the policy in assessments on the same, without interest."" This view of the statute was not accepted in the circuit court, and there was judgment against the company for the whole sum insured. That judgment was affirmed here upon certiorari to the circuit court of appeals.
lightning or commits suicide, so that he may be said to have died by accidental means, both the companies should pay, and the stipulation against liability in the event of suicide in the policies should be no more a defense against the suit upon the accident policy, providing against death from accidental cause, than against the policy which goes further and covers death from other causes as well. No such exception or exemption is found in the plain and comprehensive language of § 5855. . . . No rule of construction, short of one applied for distortion and destruction, can relieve accident insurance companies, issuing policies of insurance on life in this state, from the operation and influences of § 5855, which, in plain and unambiguous terms, declares that in all suits upon policies of insurance on
that the assured committed suicide, unless it shall have been shown, to the satisfaction of the court or judge trying the cause, that the insured contemplated suicide at the time of making his application for the policies; all stipulations in the policy to the contrary being void."
A leading case on the general subject is Logan v. Fidelity & C. Co. 146 Mo. 114, 119, 122, 123, 47 S. W. 948, which was a suit upon a policy which, according to the answer in the case, contained stipulations and covenants to the effect that, in the event of fatal injuries to the assured, wantonly inflicted upon himself, or inflicted life thereafter issued, it shall be no defense upon himself while insane, the company's liability under its policy should be a sum equal to the premiums paid, and that sum the policy provided should be in full liquidation of all claims under it. The question The question before the court was whether or not the statute here in question applied to such a policy as the one there in suit. The trial In Keller v. Travelers' Ins. Co. decided by court instructed the jury to return a ver- the St. Louis court of appeals, 58 Mo. App. dict for the full amount of the policy, with 557, 560, 561, we have a decision very much interest. The court said: "The error into in point. That was an action on an insurwhich respondent has fallen is in assuming ance policy for $2,500. The company dethat § 5855 [the statute now in question] fended upon the ground that, by the terms was intended to affect a particular line, of the policy, if the insured died of suicide, class, or department of insurance, as the whether the act be voluntary or involunsame has been classified for legislation. The tary, it should be liable for the then full real object of the section, as the clear terms net value of said policy per the American of its language express, is to affect all poli- Experience Table of Mortality and 41⁄2 per cies of insurance on life from whatever cent interest, and no more, and that the class, department, or line of insurance the same should be paid in manner and form as policy may be issued, or by whatever name provided in the policy for the payment or designation the company may be known. thereof in the event of death. The defense It is policies of a given kind, and not com- was that the insured committed suicide, panies of a class, that are to be affected by and that the full net value of the policy, the provisions of § 5855. The section was according to the contract, was only $814.50, enacted clearly to protect all policy holders and no more. The defense was overruled of insurance on life against the defense that and judgment given for the principal sum. the insured committed suicide, all provisions That judgment was affirmed in the court of in the policies to the contrary notwith-appeals, the court saying: "The plain purstanding, unless, as provided in the section, pose of the statute, supra, was to preit can be shown that the insured con- vent the insertion in policies of life insurtemplated suicide at the time he made ap-ance of exceptions to liability on the ground plication for the policy. When a of the suicide of the insured, unless it policy covers loss of life from external, vio- could be proven that the insured contemlent, and accidental means alone, why is it plated suicide at the time he made the apnot insurance on life? Such a provision in-plication for the policy.' This was, in efcorporated in a general life insurance policy admittedly would be insurance on life: then why less insurance on life because not coupled with provisions covering loss of life from usual or natural causes well?
fect, a legislative declaration of the public policy of this state. That it was intended to limit the power to contract for a lesser liability in cases of death by suicide, not within the limitation expressed in the stat
Error to state court-Federal question.
4. The admission of evidence in a crim
ute, is also apparent from its terms, to wit: | volved in the contention that the defendant 'And any stipulation to the contrary shall in a criminal case was compelled to be a be void.' . The fact that the premi- witness against himself, contrary to the um warranted, and the policy guaranteed, 5th Amendment to the Federal Constitufull insurance in case of the death of tion, since this amendment does not operate the insured for any cause not specified but was intended to operate solely upon the as a restriction of the powers of the state, in the clause set up in the defendant's anFederal government. swer, demonstrates that said clause was designed to modify the liability of the insurance company if the insured commit-inal case which the highest state court deted suicide. It necessarily follows, if this stipulation as to a decreased liability in the event of death by suicide is enforced, that it is some defense to the otherwise full liability agreed upon in the policy. As the statute in question declares that suicide, not committed as therein set forth, is 'no defense,' we cannot hold that the present stipulation can be enforced without violating the plain terms of a mandatory statute which the parties have no power to alter or abrogate."
cides did not violate the rights of the ac-
Error to state court-Federal question.
cifically informed of the nature and cause
Without further discussion, we adjudge that, under the statute in question, any-lation of his constitutional right to be spething to the contrary in the policy issued by the insurance company notwithstanding, where liability upon a life policy is denied simply because of the suicide of the insured, the beneficiary of the policy can recover the whole of the principal sum, unless it be shown that the insured, at the time of his application for the policy, contemplated suicide. The judgment must, therefore, be reversed and the case remanded for further proceedings in conformity with this opinion and consistent with law.
It is so ordered.
FREDERICK SEYMOUR BARRINGTON,
STATE OF MISSOURI.
Error to state court-Federal question.
6. The citizenship of the parties is immaterial as affecting the jurisdiction of the Federal Supreme Court, under U. S. Rev. Stat. § 709, U. S. Comp. Stat. 1901, p. 575, of a writ of error to a state court.† Error to state court-Federal question.
7. A decision of the highest state court that the defendant in a criminal case has been tried in accordance with the local procedure, although the names of all the witnesses were not indorsed on the indictment, cannot be reviewed in the Supreme Court of the United States on the theory that a meritorious Federal question was involved in the claim that the accused was a subject of Great Britain, and, by virtue of treaties, the law of nations, the laws and Constitution of the United States, and the laws of the state, was entitled to know who were the witnesses against him.
1. The refusal of a state court to grant, for local prejudice, the change of venue asked for in a criminal case, cannot involve a Federal question of sufficient merit to sustain a writ of error from the Federal Supreme Court, where the highest state court, after reviewing the testimony, decided that Submitted April 8, 1907. such refusal was not an abuse of the discretion vested in the trial court.
Error to state court-Federal question-IN ERROR to the Supreme Court of the
when raised in time.
2. The suggestion of a Federal question, first made in a petition for rehearing, filed in the highest state court, is too late to sustain a writ of error from the Supreme Court of the United States. *
Error to state court-Federal question.
3. No Federal question which will sustain a writ of error from the Supreme Court of the United States to a state court is in
State of Missouri to review a judgment which affirmed a conviction of murder in the Circuit Court of St. Louis County, in that state. Dismissed for want of jurisdiction. See same case below, 198 Mo. 23, 95 S. W. 235.
The facts are stated in the opinion.
*Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, § 1080.
Messrs. Herbert S. Hadley and John Ken- [ it to be a well-settled rule of law in Misnish for defendant in error.
souri that the granting of a change of venue in a criminal case rested largely in
Mr. Chief Justice Fuller delivered the the discretion of the trial court, and that opinion of the court:
"where the trial court has heard the evi-
Plaintiff in error was found guilty of murder in the first degree in the circuit court of St. Louis county, Missouri, and after motions for new trial and in arrest of judgment were made and overruled, judgment was rendered on the verdict and sentence passed accordingly. The case was carried to the supreme court of the state and the judgment was affirmed by division No. 2 of that court, having appellate jurisdic-acted properly in overruling the application tion of criminal cases. No Federal question was referred to in the opinion of the court. A motion for rehearing was filed, wherein Federal questions were sought to be raised. The court denied the motion without opinion.
Plaintiff in error then moved for the transfer of the cause to the court in banc, setting forth certain Federal questions, and the cause was transferred. The court in banc adopted the opinion of division No. 2 as its opinion, and the judgment was again affirmed. 198 Mo. 23, 95 S. W. 235. A motion for rehearing, assuming to raise Federal questions, was filed, and denied without opinion. This writ of error was thereupon brought and comes before us on motions to dismiss or affirm.
No assignment of errors was returned with the writ, as required by § 997 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 712), nor is there in the brief of counsel for plaintiff in error on these motions any specification of errors under Rule 21, but the brief does allege that certain Federal questions were duly raised and so disposed of as to sustain the jurisdiction of this
But if these questions are wholly without merit, or are no longer open by reason of our previous decisions, it has long been settled that the writ of error should be dismissed.
1. Before the trial of the cause was commenced, plaintiff in error applied for a change of venue on the ground of local prejudice.
The application was heard at length, and forty-one witnesses testified in its support and thirty-seven witnesses in opposition thereto; and the trial court decided that prejudice justifying a change of venue had not been made out, and denied the application. It is now contended that the refusal to grant the change of venue deprived plaintiff in error of a fair and impartial trial, to which, under the Federal Constitution, he was entitled. The state supreme court held
for a change of venue. In our judgment no Federal question was involved. Were this otherwise it would follow that we could decide in any case that the trial court had abused its discretion under the laws of the state of Missouri, although the supreme court of that state had held to the contrary.
2. It is also contended that plaintiff in error "set up and claimed that, under the Federal Constitution, as well as under the Constitution of Missouri, he could not be compelled to give testimony against himself, and that this exemption and protection were denied to him by the court in permitting to be given in evidence against him alleged extrajudicial admissions extorted from him while under arrest by the police officers of the state." Certain statements made by plaintiff in error, defendant below, were admitted in evidence on the trial, but it does not appear that counsel objected to the introduction of this testimony on the ground that any rights, privileges, or immunities of defendant under the Constitution of the United States were thereby violated. Counsel for the state offered in evidence certain articles taken from defendant's trunk, and this was objected to on the ground that they were taken in violation of the state Constitution and without defendant's consent. The objection was not passed upon, and the articles were withdrawn. The trunk and its contents were again offered in evidence and objected to, but the objection was based entirely upon the ground of irrelevancy and immateriality, and the fact that a proper foundation had not been laid in the identification of the trunk.
When the state offered in evidence the statements made by defendant following his arrest, the trial court excluded the jury and heard the testimony of the persons present at the time for the purpose of determining the competency thereof. After the examination of a number of witnesses, who detailed fully the circumstances under which the statements were made, counsel
objected "because there is no foundation | quash had been disposed of, a plea in abatelaid for it and because it was [not] voluntary." This objection was overruled and the evidence admitted.
The state supreme court held that the trial court, in admitting the testimony, did not commit error. This, notwithstanding the Constitution of Missouri provided "that no person shall be compelled to testify against himself in a criminal case." Its ruling upon that proposition is not subject to review in this court.
After the decision of the supreme court in banc, affirming the judgment, plaintiff in error filed a petition for rehearing which was denied without opinion. The third ground of that motion was as follows: "Because counsel for appellant, through neglect and inadvertence, failed to call the attention of the court to the proposition that the cross-examination of appellant, complained of as 'improper,' and the admission as evidence of statements or 'confessions' made by appellant while in the 'sweat box' of the St. Louis police department, was in direct violation of the Constitution of the United States, article 5, Amendments to the Constitution of the United States, in that it compelled the appellant to become a witness against himsen." The suggestion came too late, and, moreover, article 5 of the Amendments, alone relied on, does not operate as a "restriction of the powers of the state, but was intended to operate solely upon the Federal government." Brown v. New Jersey, 175 U. S. 172, 44 L. ed. 119, 20 Sup. C. Rep. 77. And if, as decided, the admission of this testimony did not violate the rights of the plaintiff in error under the Constitution and laws of the state of Missouri, the record affords no basis for holding that he was not awarded due process of low. Howard v. Fleming, 191 U. S. 126, 48 L. ed. 121, 24 Sup. Ct. Rep. 49.
3. Plaintiff in error filed a demurrer to the indictment, one of the grounds of which was: "Because of the inconsistency, multiplicity, and repugnancy of said counts, the defendant is being proceeded against in violation of the state and Federal guaranty of due process of law, and in violation of his constitutional right to be specifically informed of the nature and cause of the accusation against him." The demurrer was overruled. And also a motion to quash assigning similar grounds, which was likewise overruled.
( These rulings in respect of the sufficiency of the indictment present no Federal question. Howard v. Fleming, 191 U. S. 126, 135, 48 L. ed. 121, 124, 24 Sup. Ct. Rep. 49, and cases cited.
4. After the demurrer and motion to motion to
ment was filed, averring that the prosecuting attorney intentionally refrained from indorsing the names of certain witnesses on the indictment; that defendant was a native of Great Britain and a subject of the King, and that, by virtue of treaties, the law of nations, the laws and Constitution of the United States, and the laws of Missouri, defendant was entitled to know who were the witnesses against him.
A similar point, with like allegations, was made in the motion to quash. The court heard the evidence on the plea in abatement, and found the issues against defendant, except that it found that he was a native citizen and subject of Great Britain.
The question of citizenship is immaterial as affecting the jurisdiction of this court under § 709, Rev. Stat. (U. S. Comp. Stat. 1901, p. 575). French v. Hopkins, 124 U. S. 524, 31 L. ed. 536, 8 Sup. Ct. Rep. 589. Nor are we aware, as Chief Justice Waite said in Spies v. Illinois (Ex parte Spies) 123 U. S. 131, 182, 31 L. ed. 80, 91, 8 Sup. Ct. Rep. 21, of any treaty giving to subjects of Great Britain any different measure of justice than secured to citizens of this country. And the general rule of law is that aliens are subject to the law of the territory where the crime is committed. Wildenhus's Case (Mali v. Keeper of Common Jail) 120 U. S. 1, 30 L. ed. 565, 7 Sup. Ct. Rep. 383; Carlisle v. United States, 16 Wall. 147, 21 L. ed. 426; People v. McLeod, 1 Hill, 377, 37 Am. Dec. 328; Wharton, Confl. L. § 819.
As to the allegation that the prosecuting attorney intentionally refrained from indorsing the names of certain witnesses on the indictment, in the motion to quash as well as in the plea in abatement, the state courts held that the charge was not sustained by the evidence.
The right of the accused to the indorsement of names of witnesses does not rest on the common law, but is statutory, and provided for in Missouri by § 2517 of the Revised Statutes of 1899, whereby the right of the state to use other witnesses not so indorsed is recognized. The state supreme court discussed the matter at length, held there was no error, and added: "Aside from all this it is manifest that the defendant has no right to complain of any prejudicial error upon the action of the court upon this motion. This motion was filed October 6, 1903, and the record discloses upon the showing made upon such motion and plea in abatement that appellant had notice of these additional witnesses which were introduced by the state at the trial. The trial did not occur until the 23d of Febru