[660] [661] prior lien upon the part of the road covered by | TRAVELERS INSURANCE COMPANY We are of opinion that the sale of the mortgaged property, as an entirety, without having v. SADIE P. McCONKEY. (See S. C. Reporter's ed. 661-668.) Accident policy-proof necessary-death by sui- 1. Where a policy provides that an insurance shall obtained such modification of the decree of 1876 3. Upon an issue as to suicide, self destruction is 4. Where the policy provides that no claim shall Argued May 2, 1888. Decided May 14, 1888. IN ERROR to the Circuit Court of the United The facts are fully stated in the opinion. Messrs. B. D. Lee and John P. Ellis, for plaintiff in error: The burden of proof was on claimant, upon the issue presented by the general denial, to show that insured died by accidental violence. It may be that the same result practically To the extent indicated the decree is reversed and the cause is remanded for further proceedings consistent with this opinion. Freeman v. Travelers Ins. Co., 4 New Eng. The admission in plea of justification cannot Herzman v. Oberfelder, 54 Iowa, 83; Barr v. Hack, 46 Iowa, 308; Treadway v Sioux City & St. P. R. Co. 40 Iowa, 526; Heinrichs v. Terrell, 65 Iowa, 25; Mutual Ben. L. Ins. Co. v. Newton, 89 U. S. 22 Wall. 37 (22:795). It was error to give claimant, in the charge given to the jury, the benefit of a presumption which was dissipated by her own testimony in detailing the circumstances of the death. Lilienthal v. U. S. 97 U. S. 237 (24:901); Reynolds v. N. Y. Cent. & H. R. R. Co. 58 N. Y. 248; Bois v. Mut. Life Ins. Co. 14 Ins. Law Jour. 237; Accident Ins. Co. v. Crandal, 120 U. S. 527 (30:740); Mallory v. Travelers Ins. Co. 47 N. Y. 52; DeGogorza v. Knickerbocker L. Ins. Co. 65 N. Y. 232; Shank v. United Brethren Aid Soc. 84 Pa. 385; Pollock v. U. S. Mut. Accident Asso. 102 Pa. 230. [661] As to the policy of the law and the extent which courts will recognize and enforce conditions annexed to a contract, we cite as leading cases: U. S. v. Robeson, 34 U. S. 9 Pet. 319 (9:142); Condon v. South Side R. R. Co. 14 Gratt. 302; Delaware & H. Canal Co. v. Pennsylvania Coal Co. 50 N. Y. 250; Braunstein v. Accidental Death Ins. Co. 1 Best & S. 799; Worsley v. Wood, 6 T. R. 710; Scott v. Avery, 5 H. L. Cas. 811. There is not sufficient uniformity in the definition of the term "accident" as used in policies of this class to enable it to be said that the meaning has been judicially settled; but it does not appear that if the insured should provoke an attack, death resulting therefrom could be called an accident. Accident Ins. Co. v. Crandal, supra; Ripley v. R. Pass. Assur. Co. 2 Bigelow, Ins. Rep. 738. The legal effect of this contract cannot be avoided. Dwight v. Germania L. Ins. Co. 4 Cent. Rep. 529, 103 N. Y. 341; Holly v. Metropolitan L. Ins. Co. 7 Cent. Rep. 263, 105 N. Y. 437. It was error on the part of the court to submit the case to the jury. Chandler v. Von Roeder, 65 U. S. 24 How. 224 (16:633); Schuylkill & D. Imp. & R. R. Co. v. Munson, 81 U. S. 14 Wall. 442 (20:867); Fresh v. Gilson, 38 U. S. 16 Pet. 331 (10:983); Anderson County v. Beal, 113 U. S. 227 (28:966); Baylis v. Travelers Ins. Co. Id. 316 (28: 989). The charge submits a question to the jury not raised by the evidence. Ward v. U. S. 81 U. S. 14 Wall. 28 (20:792). It assumes the existence of a fact of which there is no evidence. Jones v. Randolph, 104 U. S. 108 (26:671); Chicago, R. 1. & P. R. R. Co. v. Houston, 95 U. S. 697 (24:542). It is based upon a theory unsupported by evidence. Michigan Ins. Bank v. Eldred, 76 U. S. 9 Wall. 544 (19:763); Davis v. Patrick, 122 U. S. 138 (30:1090). Messrs. W. G. Thompson and H. B. Fouke, for defendant in error: Admitting that the facts in this case create a suspicion that the death of the insured was violent, and was caused either by intentional injuries or a suicidal act of the deceased, the presumption of law is against both and must be fairly proved. Mallory v. Travelers Ins. Co. 47 N. Y. 52; Penfold v. Universal L. Ins. Co. 85 N. Y. 317; Phillips v. Louisiana Eq. L. Ins. Co. 5 Bigelow, Ins. Rep. 165; S. C. 26 La. Ann. 404; 3 Ins. Law Jour. 579; Bliss, Life Ins. 1st ed. 360, 362, 587; Guardian Mut. L. Ins. Co. v. Hogan, 80 Ill. 35; Allen v. Willard, 57 Pa. 380; Whart. Ev. § 1247, 355, 356 and notes. Self destruction cannot be presumed, neither can murder be presumed. Bank of U. S. v. Dandridge, 25 U. S. 12 Wheat. 69 (6:554); Mutual L. Ins. Co. v. Terry, 82 U. S. 15 Wall. 580 (21:236); Phillips v. Louisiana Eq. L. Ins. Co. 26 La. Ann. 404; Mallory V. Travelers Ins. Co. 47 N. Y. 52; Greenleaf v. Illinois Cent. R. R. Co. 29 Iowa, 48; Allen v. Willard, 57 Pa. 380; Accident Ins. Co. v. Crandal, 120 U. S. 527, 532 (30:740,742); Penfold v. Universal L. Ins. Co. 85 N. Y. 317, and cases cited; 1 Phil. Ev. Cow. & H. Notes, 598,732,604. Mr. Justice Harlan delivered the opinion of the court: This is a suit upon what is commonly called an accident policy of insurance. There was a verdict and judgment against the Insurance Company for the sum of $5,600 and costs. The case is here upon alleged errors of law committed at the trial to the prejudice of the defendant. The policy, by its terms, insures the life of George P. McConkey, in the sum of $5,000, for the term of twelve months, commencing at noon on the 7th of November, 1882; "the said sum insured to be paid to his wife, Sadie P. McCon key, if surviving (in event of her prior death said sum shall be paid to the legal representatives of the insured), within ninety days after sufficient proof that the insured, at any time within the continuance of this policy, shall have sustained bodily injuries, effected through external, violent, and accidental means, within the intent and meaning of this contract and the conditions hereunto annexed, and such injuries alone shall have occasioned death within ninety days from the happening thereof; or if the insured shall sustain bodily injuries, by means as aforesaid, which shall, independently of all other causes, immediately and wholly disable and prevent him from the prosecution of any and every kind of business pertaining to the occupation under which he is insured, then, on satisfactory proof of such injuries, he shall be indemnified against loss of time thereby, in a not exceeding twenty-five dollars per week, for such period of continuous total disability as shall immediately follow the accident and injuries as aforesaid, not exceeding, however twenty-six consecutive weeks from the time of the happening of such accident.” sum The policy also contained these provisions: "Provided always, that this insurance shall not extend to hernia, nor to any bodily injury of which there shall be no external and visible sign, nor to any bodily injury happening directly or indirectly in consequence of disease, nor to any death or disability which may have been caused wholly, in part, or jointly, by bodily infirmities or disease existing prior or subsequent to the date of this contract, or by the taking of poison or contact with poisonous substances, or by any surgical operation or medical or mechanical treatment; nor to any case except where the injury is the proximate and sole cause of the disability or death; and no claim shall be made under this policy when the death or injury may have been caused by dueling, fighting, wrestling, lifting or by over exertion, or by suicide (felonious or otherwise, sane or insane), or by sunstroke, freezing, or intentional injuries inflicted by the insured or any other person, or when the death or injury may have happened in consequence of war, riot, or invasion, or of riding or driving races, or of voluntary exposure to unnecessary danger, hazard, or perilous adventure, or of violating the rules of any company or corporation, or when the death or injury may have happened while the insured was, or in consequence of his hav ing been under the influence of intoxicating drinks, or while employed in mining, blasting, or wrecking, or in the manufacture, transportation, or use of gunpowder or other explosive substances (unless insured to cover such occu [662] [663] [664] pation), or while engaged in or in consequence of any unlawful act; and this insurance shall not be held to extend to disappearances, nor to any case of death or personal injury, unless the claimant under this policy shall establish by direct and positive proof that the said death or personal injury was caused by external violence and accidental means." "The burden of proving this allegation by a preponderance of evidence rests on the defendant. The presumption is that the death was not voluntary; and the defendant, in order to sustain the issue of suicide on his part, must overcome this presumption and satisfy the jury that the death was voluntary." The court also said: "In order, therefore, The petition setting out the plaintiff's cause to sustain the plea of suicide, the defendant of action alleged that the insured, on or about must have given to the jury evidence sufficient January 2, 1882, "was accidentally shot through to overcome the presumption to which I have the heart by a pistol or gun, loaded with pow-referred, and to convince the jury that the inder and ball, by a person or persons unknown jury from which the insured died was volunto plaintiff, by reason of which accidental in- tary or intentional on his part." jury said George P. McConkey then and there instantly died, of which accident and death said defendant was duly and legally notified," etc. The answer denies that the death of the insured was occasioned by bodily injuries effected through external, violent, and accidental means (or effected through external violence and accidental means), within the meaning of the contract of insurance. It alleges: (1) That his death was caused by suicide; (2) that it was caused by intentional injuries inflicted either by the insured or by some other person. As the argument addressed to this court had special reference to the charge to the jury, the following extract from it is given, as showing the general grounds upon which the court below proceeded: "The plaintiff exhibits the policy in evidence and gives evidence of the fact that the insured was found dead within the life of the policy, from a pistol shot through the heart. This evidence satisfies the terms of the policy with respect to the fact that the assured came to his death by 'external and violent means,' and the only question is whether the means by which he came to his death were also 'accidental.' "It is manifest that self destruction cannot be presumed. So strong is the instinctive love of life in the human breast and so uniform the efforts of men to preserve their existence that suicide cannot be presumed. The plaintiff is therefore entitled to recover unless the defendant has by competent evidence overcome this presumption and satisfied the jury by a preponderance of evidence that the injuries which caused the death of the insured were intentional on his part. "Neither is murder to be presumed by the jury; crime is never to be presumed; but if the jury find from the evidence that the insured was in fact murdered, the death was an accident as to him, the same as if he had been killed by the falling of a house or the derailment of a railway car in which he was a passenger. If the jury find that the injuries of the insured resulting in his death were not intentional on his part the plaintiff has a right to recover. As further illustrating the views of the learned judge who presided at the trial, it may [665] also be stated that the defendant asked the court to instruct the jury as follows: "The burden of proof is upon the plaintiff to establish, by a preponderance of credible testimony, that the deceased came to his death from injuries (or an injury) effected through external, violent, and accidental means within the intent and meaning of the contract and conditions expressed in the policy." That instruction was given with the following explanation or qualifica tion: "That it does clearly appear from the evidence that the insured came to his death from injuries or an injury effected through violent and external means, and that the presumption is that the means were unintentional on the part of the insured, which the court holds satisfies the contract. This presumed fact is not conclusive, and may be overcome by evidence, if such there is in the case, that the injuries were voluntary or intentional." The defendant also asked the following instructions: "Plaintiff must establish by direct and positive proof that the death was caused by external violence and accidental means, and, failing in this, she will not be entitled to a verdict." "Plaintiff's case must not rest upon mere conjecture, but her proof must be such as to lead directly to the conclusion that the death was effected by accidental means within the meaning of the policy, and unless she have adduced proof of that character your verdict should be for the defendant." These instruc tions were given with the following qualifications: "The external violence appearing in the fact that the death ensued from a pistol shot through the heart, the presumption is that it was accidental-not intentional-on the part of the assured, which facts, proved and presumed, make out the plaintiff's case, unless the defendant has satisfied the jury by affirmative proof that the means of death were intentional on the part of the insured." There is no escape from the conclusion that, under the issue presented by the general denial in the answer, it was incumbent upon the plaint"But if the jury find that the injuries in- iff to show, from all the evidence, that the flicted upon the assured, causing his death, death of the insured was the result, not only whether by the assured himself or any other of external and violent, but of accidental person, were intentional on the part of the as-means. The policy provides that the insurance sured, the plaintiff cannot recover in this action. "The inquiry, therefore, before the jury is resolved into a question of suicide, because if the insured was murdered the destruction of his life was not intentional on his part. shall not extend to any case of death or personal injury, unless the claimant under the policy establishes, by direct and positive proof, that such death or personal injury was caused by external violence and accidental means. Such "The defendant, in its answer, alleges that being the contract, the court must give effect the death of the insured was caused by suicide. I to its provisions according to the fair meaning [666] 33 of the words used, leaning, however, where | particular. The policy expressly provides that The requirement, however, of direct and positive proof, as to certain matters, did not make it necessary to establish the fact and attendant circumstances of death by persons who were actually present when the insured received the injuries which caused his death. The two principal facts to be established were external violence and accidental means, producing death. The first was established when it appeared that death ensued from a pistol shot through the heart of the insured. The evidence on that point was direct and positive; as much so, within the meaning of the policy, as if it had come from one who saw the pistol fired; and the proof, on this point, is none the less direct and positive because supplemented or strengthened by evidence of a circumstantial character. Upon the whole case, the court is of opinion, that, by the terms of the contract, the burden of proof was upon the plaintiff, under the limitations we have stated, to show, from all the evidence, that the death of the insured was caused by external violence and accidental means; also, that no valid claim can be made under the policy, if the insured, either intentionally or when insane, inflicted upon himself the injuries which caused his death, or if his death was caused by intentional injuries inflicted upon him by some other person. The judgment is accordingly reversed, and the cause remanded, with directions to grant a new trial and for further proceedings consistent with this opinion. EDWARD LELOUP, Piff. in Err., [640] V. PORT OF MOBILE. (See S. C. Reporter's ed. 640-649.) Were the means by which the insured came to his death also accidental? If he committed suicide, then the law was for the Company, because the policy, by its terms, did not extend to or cover self destruction, whether the insured was [667] at the time sane or insane. In respect to the issue as to suicide, the court instructed the jury that self destruction was not to be presumed. In Mallory v. Travelers Ins. Co. 47 N. Y. 54,— which was a suit upon an accident policy-it appeared that the death was caused either by accidental injury or by the suicidal act of the deceased. "But," the court properly said, "the presumption is against the latter. It is contrary to the general conduct of mankind; it shows 1. Where a telegraph company is doing the busigross moral turpitude in a sane person." Didness of transmitting messages between different the court err in saying to the jury that, upon the telegraph law passed by Congress July 24, 1866, no States, and has accepted and is acting under the issue as to suicide, the law was for the plaint-State within which it sees fit to establish an office iff, unless that presumption was overcome by can impose upon it a license tax, or require it to competent evidence? This question must be take out a license for the transaction of such busianswered in the negative. The condition that direct and positive proof must be made of death having been caused by external, violent, and accidental means, did not deprive the plaintiff, when making such proof, of the benefit of the rules of law established for the guidance of courts and juries in the investigation and determination of facts. Upon like grounds, we sustain the ruling to the effect that the jury should not presume, from the mere fact of death, that the insured was murdered. The facts were all before the jury as to the movements of the insured on the evening of his death, and as to the condition of his body and clothes when he was found dead, at a late hour of the night, upon the floor of his office. While it was not to be presumed, as a matter of law, that the deceased took his own life, or that he was murdered, the jury were at liberty to draw such inferences in respect to the cause of death as, under the settled rules of evidence, the facts and circumstances justified. ness. 2. Telegraphic communications are commerce, as well as in the nature of postal service, and if carmerce, and within the power of regulation conried on between different States, are interstate comferred upon Congress, free from the control of state regulations, except such as are strictly of a of tax on the occupation or business, or requiring police character; and any state regulations by way a license to transact such business, are unconstitu tional and void. affects its entire business, interstate as well as do- 4. The property of a telegraph company, situated 5. The Western Union Telegraph Company es tablished an office in the City of Mobile, Alabama, ordinance, which imposed an annual license tax of and was required to pay a license tax under a city $5 on all telegraph companies, and the agent of the company was fined for the nonpayment of this the charter and nature of occupation of the comtax; in an action to recover the fine, he pleaded pany, and its acceptance of the Act of Congress of July 24, 1866, and the fact that its business conUnited States, as well as in Alabama; Held, a good sisted in transmitting messages to all parts of the [No. 274.] defense. We are, however, of opinion that the instruc- [641] The facts are fully stated in the opinion. error: A State cannot legally impose a license or privilege tax such as that demanded by the Port of Mobile. Brown v. Maryland, 25 U. S. 12 Wheat. 419, 439 (6: 678, 685); Pensacola Tel. Co. v. W. U. Tel. Co. 96 U. S. 1 (24: 708); State Tax on Railway Gross Receipts, 82 U. S. 15 Wall. 284 (21: 164); Hall v. DeCuir, 95 U. S. 485 (24: 547); License Tax Cases, 72 U. S. 5 Wall, 462 (18: 497;) Osborne v. Mobile, 83 U. S. 16 Wall.479 (21:470); Pickard v. Pullman Southern Car Co.117 U. S.34 (29: 785); Robbins v. Shelby County Taxing Dist. 120 U. S. 489 (30: 694); W. U. Tel. Co. v. Pendleton, 122 U. S. 347 (30: 1187); Moran v. New Orleans, 112 U. S. 69 (28: 653); Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 (29: 158). (No counsel appeared for defendant in error.) Mr. Justice Bradley delivered the opinion of the court: ERROR to the Supreme Court of the of Mobile, of the Western Union Telegraph This was an action brought in the Mobile The defendant pleaded that at the time of the alleged breach of said ordinance, he was the duly appointed manager, at the Port [643] |