posure, within the policy. Overbeck v. Travelers' Ins. Co., 68 S. W. 236, 94 Mo. App. 453.

Going upon or crossing a railroad track, though done carelessly and without proper attention to the possibility of approaching trains, is not, as a matter of law, a voluntary exposure to unnecessary danger. Keene v. New England Mut. Acc. Ass'n, 161 Mass. 149, 36 N. E. 891; Duncan v. Preferred Mut. Acc. Ass'n (Super. N. Y.) 13 N. Y. Supp. 620, affirmed without opinion 29 N. E. 1029, 129 N. Y. 622; Meadows v. Pacific Mut. Life Ins. Co., 129 Mo. 76, 31 S. W. 578, 50 Am. St. Rep. 427; Badenfeld v. Massachusetts Mut. Acc. Ass'n, 154 Mass. 77, 27 N. E. 769, 12 L. R. A. 263; Lehman v. Great Eastern Casualty & Indemnity Co., 53 N. E. 1127 (mem.) 158 N. Y. 689. This rule was applied where insured was stationed at a particular bridge to flag trains approaching the same, and apparently fell asleep on the track, Jamison v. Connecticut Casualty Co., 78 S. W. 812, 104 Mo. App. 306; and also where an employé of a railroad was sent to shovel snow from the crossings, Freeman v. Travelers' Ins. Co. of Hartford, 144 Mass. 572, 12 N. E. 372. So, where insured sat down on the track near a curve, with his back to the curve, and a train came suddenly around the curve, the act of the insured was not within the exception. Fidelity & Casualty Co. v. Chambers, 93 Va. 138, 24 S. E. 896, 40 L. R. A. 432. On the other hand, it was held in Metropolitan Acc. Ass'n v. Taylor, 71 Ill. App. 132, that the insurer was not liable where the insured sat down on the track of a railroad in actual operation, and was run over and killed. So, in Willard v. Masonic Equitable Acc. Ass'n, 169 Mass. 288, 47 N. E. 1006, 61 Am. St. Rep. 285, it was held to be a voluntary exposure to danger where insured attempted to cross a railway between the cars of a freight train standing thereon. An attempt to cross a freight train by climbing over the drawheads and freight-car couplings is a voluntary exposure to danger. Bean v. Employers' Liability Assur. Corp., 50 Mo. App. 459. So, running along the track in front of a train at night, for the purpose of getting on a train approaching in an opposite direction on another track, is a voluntary exposure to danger. Tuttle v. Travelers' Ins. Co., 134 Mass. 175, 45 Am. Rep. 316. It is a voluntary exposure to danger to attempt on a dark night to walk across a railroad trestle where there was no railing, and nothing to walk on but ties 10 inches apart. Follis v. United States Mut. Acc. Ass'n, 94 Iowa, 435, 62 N. W. 807, 28 L. R. A. 78, 58 Am. St. Rep. 408. Crossing railway tracks to take a train at a place other than the ordinary passageway, merely for convenience, is a voluntary exposure to danger, within the policy. Glass v. Masons' Fraternal Acc. Ass'n (C. C.) 112 Fed. 495.

Where the defense is that the insured voluntarily exposed himself to unnecessary danger, the answer must state the facts on which the contention is based (Voluntary Relief Department of Penn

sylvania Lines West of Pittsburg v. Spenger, 17 Ind. App. 123, 46 N. E. 477), and an answer alleging facts which in the absence of explanation show a voluntary exposure to danger is sufficient (Conboy v. Railway Officials' & Employés Acc. Ass'n [Ind. App.] 43 N. E. 1017).

In a suit on an accident policy containing a provision preventing recovery for injuries resulting from exposure to unnecessary danger, a defense under that clause goes to the entire right of recovery, and is waived by an offer to confess judgment for a certain sum.

Holiday v. American Mut. Acc. Ass'n, 72 N. W. 448, 103 Iowa, 178, 64 Am. St. Rep. 170; Wildey Casualty Co. v. Sheppard, 59 Pac. 651, 61 Kan. 351, 47 L. R. A. 650.

The burden of proving that the injury was due to voluntary exposure to unnecessary danger is on the insurer.

De Greayer v. Fidelity & Casualty Co. of New York, 126 Cal. xvii, 58 Pac. 390; Fidelity & Casualty Co. v. Sittig, 79 Ill. App. 245; Id., 54 N. E. 903, 181 Ill. 111, 48 L. R. A. 359; Follis v. United States Mut. Acc. Ass'n, 94 Iowa, 435, 62 N. W. 807, 28 L. R. A. 78, 58 Am. St. Rep. 408; Badenfeld v. Massachusetts Mut. Acc. Ass'n, 15-1 Mass. 77, 27 N. E. 769, 13 L. R. A. 263; Meadows v. Pacific Mut. Life Ins. Co., 129 Mo. 76, 31 S. W. 578, 50 Am. St. Rep. 427; Hester v. Fidelity & Casualty Co., 69 Mo. App. 186; Jamison v. Continental Casualty Co., 78 S. W. 812, 104 Mo. App. 306.

What amounts to a voluntary exposure to unnecessary danger is necessarily largely a question of fact, for the determination of the jury, under all the circumstances of the case.

Traders' & Travelers' Acc. Co. v. Wagley, 74 Fed. 457, 20 C. C. A. 588, 45 U. S. App. 39; Ashenfelter v. Employers' Liability Assur. Corp., 87 Fed. 682, 31 C. C. A. 193; Columbian Acc. Co. v. Sanford, 50 Ill. App. 424; Payne v. Fraternal Acc. Ass'n, 119 Iowa, 342, 93 N. W. 361; Travelers' Ins. Co. v. Snowden, 45 Neb. 249, 63 N. W. 392.

Where the policy insures against bodily injuries induced by accidental means, except death or disability happening in consequence of disease or bodily infirmity or by voluntary exposure to unnecessary danger, an alternative finding of fact that insured met his death in consequence of bodily disease or infirmity, or by reason of his voluntary exposure to unnecessary danger, is sufficient to support a judgment in favor of the company (Taylor v. Metropolitan Acc. Ass'n, 172 Ill. 511, 50 N. E. 115). Where, in an action on a policy containing a condition that it should not cover injuries

received from a voluntary exposure to unnecessary danger, the jury found, in answer to interrogatories, that insured was injured by running into a wagon while riding a bicycle against a heavy wind, which he might have avoided if he had been looking ahead; that he was not conscious of danger, and did not knowingly and intentionally assume a risk, nor intentionally take chances of colliding with the wagon; and that he did not voluntarily expose himself to danger-such findings, taken together, show no irreconcilable conflict with the general verdict in plaintiff's favor (Commercial Travelers' Mut. Acc. Ass'n v. Springsteen, 55 N. E. 973, 23 Ind. App. 657).

4. SUICIDE AS AN EXCEPTED RISK IN LIFE AND ACCIDENT

INSURANCE.

(a) In general.

(b) Validity of conditions declaring suicide an excepted risk.

(c) Effect of subsequent by-laws.

(d) Statutory provisions.

(e) Effect of clause declaring policy incontestable.

(f) What constitutes suicide in general.

(g) Involuntary self-destruction.

(h) Effect of insanity.

(i) Same-Under "sane or insane" clause.

(j) Same Cause of mental derangement.

(k) Questions of practice-Pleading.

(1) Same-Presumptions.

(m) Same-Burden of proof.

(n) Same-Admissibility of evidence.

(0) Same-Weight and sufficiency of evidence.
(p) Same-Trial.

(a) In general.

Though recent forms of policies contain conditions intended to exempt the insurer from liability if the insured commit suicide, there are a number of cases based on earlier forms in which the question has been considered whether, in the absence of any provision in the policy excepting such a risk, death by suicide is a risk assumed by the insurer. That it is not included within other conditions in the nature of exceptions has been held in several cases. Thus, suicide is not a crime within the condition excepting death in violation of law (Darrow v. Family Fund Soc., 42 Hun, 245, affirmed in 116 N. Y. 537, 22 N. E. 1093, 6 L. R. A. 495, 15 Am. St.

Rep. 430). Nor is it an "immoral practice," within a condition relieving the insurer if the death of the insured is due to any immoral practice (Northwestern Ben. & Mut. Aid Ass'n v. Wanner, 24 Ill. App. 357). It has, however, been held to fall within a provision exempting the insurer from liability if the insured die by his own illegal act (Shipman v. Protected Home Circle, 67 N. E. 83, 174 N. Y. 398, 63 L. R. A. 347, modifying 66 App. Div. 448, 73 N. Y. Supp. 594).

In several cases the rule has been laid down that a condition excepting suicide while sane from the risks assumed is implied in all policies in which the insurance is payable to the insured, his estate, personal representatives, or assignees. The leading case is Ritter v. Mutual Life Ins. Co., 18 Sup. Ct. 300, 169 U. S. 139, 42 L. Ed. 693, affirming 70 Fed. 954, 17 C. C. A. 537, 42 L. R. A. 583,1 where the decision was based on considerations of public policy, and on the presumption that suicide was intended when the policy was taken out. No particular stress was laid on the fact that the policy was payable to the personal representatives of the insured,. but that this is an important feature of the case has been pointed out, not only in cases which have distinguished it for that reason,. but even in cases which have followed it. Thus, in Hopkins v.. Northwestern Life Assur. Co. (C. C.) 94 Fed. 729, the court pointed out that the policy in the Ritter Case was payable to the insured himself or his representatives, though it was held that the rule that the exception of suicide was implied would apply in any case. The principle that the exception will be implied, though the policy is payable to the insured or his personal representatives, has also been recognized in other cases prior and subsequent to the Ritter Case. Reference may be made to Supreme Lodge Knights of Pythias v. Kutscher, 72 Ill. App. 462; Bank of Oil City v. Guardian Mut. Life Ins. Co., 6 Leg. Gaz. 348; Hall v. Mutual Reserve Fund Life Ass'n, 19 Pa. Super. Ct. 31.

Similarly, it has been held that in the case of mutual benefit associations, where the insured has power to change the beneficiary, the exception will also be implied.

Supreme Commandery Knights of the Golden Rule v. Ainsworth, 71 Ala. 436, 46 Am. Rep. 332; Mooney v. Ancient Order of United Workmen, 114 Ky. 950, 72 S. W. 288, 24 Ky. Law Rep. 1787; Hunziker v. Supreme Lodge Knights of Pythias, 25 Ky. Law Rep. 1510, 78

1 For prior report, see (C. C.) 69 Fed. 505.

S. W. 201; Weber v. Supreme Tent of Knights of Maccabees, 65 N. E. 258, 172 N. Y. 490, 92 Am. St. Rep. 753; Reynolds v. Supreme Conclave Improved Order of Heptasophs, 24 Pa. Co. Ct. R. 638.

The theory on which these cases are decided is undoubtedly the principle laid down in Shipman v. Protected Home Circle, 174 N. Y. 398, 67 N. E. 83, 63 L. R. A. 347, modifying 66 App. Div. 448, 73 N. Y. Supp. 594, where it was said that the beneficiary under a certificate issued by a mutual benefit association takes his rights through the insured, and subject to the terms of the contract entered into by him, and not in the same manner as the beneficiary in an ordinary life insurance policy, and therefore cannot benefit by the wrong of the insured in intentionally taking his life, while sane, any more than the legal representatives of the insured in an ordinary life insurance policy under the same conditions.

On the other hand, it has been pointed out in Parker v. Des Moines Life Ass'n, 108 Iowa, 117, 78 N. W. 826, that since a beneficiary takes by contract, and not by inheritance, suicide by the insured does not avoid the policy, in the absence of a provision that such should be its effect, though insured had the right to change the beneficiary without the latter's consent.

Conceding that the rule is as stated in the Ritter Case, when the policy is payable to the insured or his personal representatives, it is nevertheless the settled rule that where the policy is payable to the wife or child, or other third person expressly designated as beneficiary, the suicide of the insured while sane is not an excepted risk, in the absence of a stipulation to that effect; and this is true though the contract is that of a mutual benefit association under which the insured has the right to change the beneficiary.

This rule is supported by Supreme Lodge Knights of Pythias v. Kutscher, 72 Ill. App. 462; Supreme Lodge Knights of Pythias v. Trebbe, 74 Ill. App. 545; Supreme Council Royal Arcanum v. Pels, 110 Ill. App. 409, affirmed in 70 N. E. 697, 209 Ill. 33; Seiler v. Economic Life Ass'n, 105 Iowa, 87, 74 N. W. 941, 43 L. R. A. 537; Parker v. Des Moines Life Ass'n, 108 Iowa, 117, 78 N. W. 826; Supreme Conclave Improved Order of Heptasophs v. Miles, 92 Md. 613, 48 Atl. 845, 84 Am. St. Rep. 528; Mills v. Rebstock, 29 Minn, 380, 13 N. W. 162; Kerr v. Minnesota Mut. Ben. Ass'n, 39 Minn. 174, 39 N. W. 312, 12 Am. St. Rep. 631; Robson v. United Order of Foresters (Minn.) 100 N. W. 381; Supreme Lodge of Sons and Daughters of Protection v. Underwood, 3 Neb. (Unof.) 798, 92 N. W. 1051;