711

THE DEAF AND DUMB.

was no case against him and he was acquitted. The act was committed during sleep, but the sleep was the result of voluntary drunkenness.

Somnambulism may become a subject of discussion under a contested policy of life insurance, in which it may be provided that it shall be vitiated by suicide. If a man falls from a height and is killed while in a state of somnambulism, would this be considered an act of suicide within the meaning of the policy? The proviso against suicide has been held to include only intentional killing (case of Borradaile v. Hunter, Lond. Med. Gaz., vol. xxxvi. p. 826), and in death under these circumstances the killing cannot be said to be intentional: it can be regarded only as an accident-therefore it is reasonable to infer that the policy would not be void. It is impossible, however, to lay down any general rules relative to cases of this description, since the circumstances attending each case will sufficiently explain how far the act of murder or suicide has been committed during a state of somnambulism, or under an illusion continuing from a state of sleep.

THE DEAF AND DUMB.

It was formerly laid down in the law-books, that a person born deaf and dumb was by presumption of law an idiot, but in modern practice want of speech and hearing does not imply want of capacity either in the understanding or memory, but only a difficulty in the means of communicating knowledge; and when it can be shown that such a person has understanding, which many in this condition reveal by signs, he may be tried and suffer judgment and execution. A deaf-and-dumb person is not incompetent to give evidence, unless he is also blind; he may be examined through the medium of a sworn interpreter who understands his signs. This condition does not justify restraint or interdiction, unless there is at the same time mental deficiency. A deaf-and-dumb person who has never been instructed is altogether irresponsible for any action civil or criminal. Such a person cannot even be called on to plead to a charge, when there is reason to suppose that he cannot understand the nature of the proceedings. A deaf-and-dumb woman was charged with cutting off the head of her child. By signs she pleaded "not guilty," but she could not be made to understand the nature of the other proceedings against her. Upon this she was discharged and subsequently confined as a criminal lunatic. In Reg. v. Goodman (Stafford Sum. Ass., 1841), a deafand-dumb man was convicted of theft and sentenced to imprisonment. He was made to comprehend the proceedings by signs and talking with the fingers. In Reg. v. Brook (Buckingham Sum. Ass., 1842), the prisoner could read and write well. He was charged with feloniously cutting and stabbing. The proceedings were reported to him in writing. He was convicted, and the judge, having sentenced him to a year's imprisonment, handed down his judgment in writing, which he recommended him to read and ponder over in prison, In Reg. v. Jackson (Bedford Sum. Ass., 1844), Alderson, B., held that, before the evidence of a dumb witness can be received, the court must be satisfied that he understands the obligation of an oath.

It has been decided in the Ecclesiastical Courts that the consent of a deaf-and-dumb person, given by signs, renders a matrimonial contract valid, provided the person has a full and proper understanding of their meaning. An incompetency to enter into contracts, or unsoundness of mind, must not be inferred to exist merely in consequence of a person being deaf and dumb. In the case of Harrod v. Harrod (Vice-Chanc. Ct.,

FEIGNED DEAFNESS AND DUMBNESS.

745 June, 1854), an attempt was made to deprive the plaintiff of his rights on the ground that he was an illegitimate child. The marriage of his parents took place thirty years previously, but the marriage was said to be void by reason of the alleged incapacity of his mother to enter into the contract; the mother was deaf and dumb, and of more than ordinary dull intellect. Wood, V. C., said there was an important difference between "unsoundness of mind" and "dulness of intellect." The presumption in such cases was always in favor of sanity, and the fact of a person being deaf and dumb did not raise a presumption the other way. Experience showed that the deaf and dumb were not necessarily of unsound mind. The woman had assented to the marriage in form and substance, and with a perfect knowledge of what she was doing. In the ceremony of marriage it had never been held that the repetition of the words was necessary. The woman conducted herself with great propriety before and after the marriage, and a child was born in due course. There was no ground for an issue.

Feigned Deafness and Dumbness. From these statements it will be perceived that medical evidence is of but little importance in relation to the deaf and dumb. Indeed, there are only two cases in which this kind of evidence is likely to be called for: first, when there is accompanying mental deficiency, in which case the general rules elsewhere given are applicable; and second, when there is a suspicion that the deafness and dumbness are feigned. There will be no great difficulty in detecting an imposition of this kind. It may be found that the alleged deafness and dumbness did not come on until a motive existed, and that there was no apparent cause but the very suspicious one of evading responsibility for some offence committed. It requires great skill to maintain an imposture of this kind. Such persons are immediately thrown off their guard by addressing them in a voice a little above or a little below the common conversational tone; when a change in the eye or the features will at once indicate that they hear and understand what is said.

In Reg. v. Yaquierdo (Herts Sum. Ass., 1854), the prisoner, who was charged with murder, was found by the jury to be wilfully mute. The man refused to plead, although it was obvious that he was well aware of the nature of the proceedings. No counsel could be assigned to him, as this could not be done without the prisoner's consent. He was convicted.

Shortly after the trial, this man was found to be insane, but not mute.

If the impostor can write, he may perhaps be detected by the ingenious plan adopted by the Abbé Sicard. When the deaf and dumb are taught to write, they are taught by the eye. The letters are only known to them by their form, and their value in any word can be understood only by their exact relative position with respect to each other. A half-educated impostor will spell his words or divide them incorrectly; and the errors in spelling will always have reference to sound-thereby indicating that his knowledge has been acquired through the ear, and not alone through the eye. A man who had defied all other means of detection wrote down several sentences, in which the misspelling was obviously due to errors produced by the sound of the words, thereby showing that he must have heard them pronounced. The Abbé concluded, without seeing him, that the man was an impostor, and he subsequently confessed the imposition.

716

PRINCIPLES OF LIFE INSURANCE.

LIFE INSURANCE.

CHAPTER LXVIII.

PRINCIPLES OF LIFE INSURANCE.-MEDICAL RESPONSIBILITY.-WHAT DISEASES HAVE AND WHAT HAVE NOT A TENDENCY TO SHORTEN LIFE?-CONCEALMENT OF DISEASES.-CONCEALMENT OF HABITS.-MATERIAL CONCEALMENT. WHAT IS INTEMPERANCE?-PROXIMATE AND REMOTE EFFECTS.OPIUM-EATING.-INVETERATE SMOKING.-INSANITY.VOIDANCE OF POLICIES BY SUICIDE.-INSURANCE MURDERS.

THE insurance of a life is a contract whereby the insurer, in consideration of a certain sum of money, called a premium, either in a gross sum or in periodical payments-proportioned to the age, sex, profession, health, and other circumstances of the person whose life is insured-undertakes to pay to the person for whose benefit the insurance is made, a stipulated sum, or an equivalent annuity, upon the death of the individual whose life is insured (or on his attaining a certain age), whenever this event shall happen, if the insurance is for the whole life; or, in case this shall happen within a certain period, if the insurance is only for a limited time. The deed by which this contract is made is called a policy, and it is concerning the stipulations of the policy, and the meaning to be put upon certain medical terms used in it that litigation commonly arises. The amount of premium payable will be regulated by the mean expectation or duration of life of the individual; and this it is well known is not only different at different ages, but is greater at certain periods of life among women than among men.

The sum for which a person's life has been insured cannot be recovered until after the death of the person and distinct proof of death. Those who would benefit by the death must prove the fact of death when this is open to doubt. A man suddenly disappeared while at Brighton within a week after an insurance had been effected on his life. The man's clothes were found on the beach, and the jury were asked to infer from this fact that the man was drowned while bathing, and that his body had been carried out to sea. No one had seen him go into the water. The jury were discharged without a verdict. It was quite possible that the clothes had been designedly placed there, and that the man had gone off in another direc tion, and was then living. The editor met with a remarkable case. In 1878 a young merchant was staying at an hotel in Barmouth. One morn ing he went to bathe alone from the beach. His clothes, containing and his watch, were subsequently found; but the body of the supposed drowned man was not found. An insurance on his life was paid. Six months after, the supposed deceased was recognized and challenged in South America by a friend; and the insurance money had to be refunded. The missing man had been in pecuniary difficulties. He took with him to bathe an extra suit of clothes, and decamped, leaving money in the pockets of the clothes on shore in order to avoid suspicion.,

money

LIFE INSURANCE-MEDICAL RESPONSIBILITY.

747

Different rules have been given by actuaries for calculating the expectation or duration of life at different ages. One of the most simple of these rules for calculating the duration of life from five to sixty years has been given by Willich: He considers the probable duration to be equal to twothirds of the difference between the age and eighty. Thus in a man twenty years of age the difference is equal to sixty; and two-thirds of this age, or forty years, is the probable duration of life for a person of average health at twenty.

With respect to the influence of profession, a higher premium is demanded by some offices for the insurance of the lives of persons whose occupations expose them to great risk-as, for instance, of persons actually engaged in military or naval service.

Above all other conditions, the general state of health of the person is likely to have a most important influence on the mean duration of life; and it is here that medical science lends its aid-first, by showing how far a contract may be safely entered into when the person is affected with disease; and second, by showing whether a diseased state of the body really existed in the person insured, although at the time of insurance it may have been alleged that he was healthy and free from disease.

As in the case of all civil contracts, the law requires that there should be a strict compliance with the conditions by each party, it follows that if any fraud has been committed by the insured-if he, or those to whom he trusted in his dealings with the office, have concealed from the insurers the existence of any disease under which he was at the time laboring, or any symptoms indicative of a probable attack of disease; or if he or they have knowingly or wilfully misrepresented his actual bodily condition-then the contract will be void, and the amount of the premiums forfeited. This forfeiture is a usual condition in the policy. Actions on policies of life insurance are not unfrequent. In a case of life insurance an action is never likely to be brought for the recovery of the amount of a policy, except when there is reason to believe that a wilful fraud has existed in the contract. Juries always regard such actions with disfavor; and, while judges interpret the law strictly, the onus of proof is entirely thrown on the offices. Hence the insured are placed in a very advantageous position. These actions, in nine cases out of ten, depend upon the construction put on the medical terms of the contract; hence it is our duty to see how medical defects are likely to arise in reference to the policy.

The Relations of Medical Men with Insurance Offices. Medical Responsibility. The practice with some offices of obtaining a certificate gratuitously from the medical attendant of the person proposing to insure his life is one great source of litigation. The responsibility of causing the life to be accepted or rejected is thus thrown entirely upon the usual medical attendant of the person; for, as we shall see hereafter, an appli cation for a certificate from a medical practitioner who is a stranger, is very likely to be treated as a fraud, and may lead to the disputing of the policy. The medical attendant of the person, it is true, is the only individual who can properly certify to the real state of previous health, and therefore to him an application is generally made. He is sometimes expected to furnish an important certificate of this kind gratuitously; and should it happen to be unfavorable, he is exposed to the risk of losing what may probably be a lucrative portion of his practice. The question is, whether an insurance office has a right to place a medical man in such a position as this. In the issuing of the policy the insurers and insured are equally benefited, for the contract would certainly not be made except upon a supposition of reciprocal advantage. The medical attendant, with

748

DISEASES TENDING TO SHORTEN LIFE.

out whose sanction the policy could not in all cases be properly effected, not only derives no benefit, but is actually exposed to the risk of loss for performing in an honorable and conscientious manner an invidious duty thus forced upon him. Such a state of things ought not to be. Many actions for the recovery of disputed policies have shown clearly that the practice leads to great carelessness and indifference on the part of medical men in drawing up these certificates, and this produces in the end a more serious loss to the representatives of the insured than if the life had not been accepted. It must be remembered that it is not the insurers who suffer by misconduct on the part of a medical man who signs such a certificate, but the representatives of the insured. It is always professed that such communications are confidential; but in more than one instance medical men have found that the contents of their certificates have become known to their patients, and have even been publicly used as evidence in courts of law.

In the event of a medical practitioner being called upon to sign a certificate of this kind, the safer course would be that he should decline the proposal, except upon a professional consultation with the medical officers appointed by the insurers. If, however, from private considerations he is compelled to sign the certificate, it is his duty to use the greatest caution, not merely in returning answers to the formal questions on the paper, but in detailing all particulars known to him respecting the state of health of In acting otherwise, he would be doing the greatest possible injury to the representatives of the insured, and probably damage his own reputation. There is no intermediate course: the duty must either be performed carefully, conscientiously, and honorably, or it must be declined altogether. It is a fallacy to suppose that any equivocation or concealment in the declaration can escape detection; and yet, from the evidence which has been given at some trials, it is probable that such an idea had existed in the mind of the medical attendant who attached his name to the certificate.

Diseases tending to shorten Life.-Let us take the case, however, that this preliminary duty has been properly performed; important medical questions may arise respecting the alleged infringement of the conditions of a policy. The list of diseases specified in the inquiries comprises a great variety-affections of the head: apoplexy, palsy, epileptic or other fits; disease of the brain, insanity; disease of the lungs, spitting of blood, asthma, inflammation; disease of the heart; dropsy; diseases of the bowels, liver, kidneys, or urinary organs; gout, rheumatism, hernia; phthisis, or any hereditary malady.

The

In the proposals of some offices the mysterious word "fits" occupies a very prominent position, but it is difficult to say what this word thus isolated actually means. Thus it may comprise apoplexy, epilepsy, paralysis, syncope, convulsions from any cause, and even asphyxia. word is too indefinite for a certificate, and should be expunged. In the meantime, a court of law will not allow insurers to benefit by the use of ambiguous terms in the contract, and it has therefore commonly restricted the meaning of the word "fits" to attacks of epilepsy. The main condition, however, is involved in the terms-"any other disease or disorder tending to shorten life." Upon the meaning of these words litigation` commonly turns, and the opinions of medical experts are required.

It is impossible to lay down any general rules for determining what 'diseases have, and what diseases have not, a tendency to shorten life. Any deviation from health might be so interpreted; but the law puts a proper limitation here upon the meaning of the words, considering them