|OPINION BY: BREITEL, J.
Plaintiff executor, in a wrongful death action, recovered a jury verdict for $ 200,000. The Appellate Division set aside the verdict and judgment in favor of plaintiff executor and dismissed the complaint. In doing so, that court noted that even if it were not to dismiss the complaint, it would set the verdict aside as contrary to the weight of the credible evidence. Plaintiff executor appeals.
Decedent, Dr. Lewis, committed suicide some seven months after an automobile accident from which he had walked away believing he was uninjured. In fact he had suffered head injuries with consequences to be detailed later. The theory of the case was that defendants, owner and operator of the vehicle which struck decedent's automobile, were responsible in tort for the suicide as a matter of proximate cause and effect. The issue is whether plaintiff's evidence of cause of the suicide was sufficient to withstand dismissal of the complaint.
There should be a reversal of the order of the Appellate Division and a new trial ordered. Regardless of how the evidence might be viewed by those entitled to weigh it for its probative effect, there was enough to establish plaintiff's right to have his evidence assessed by a trial jury, and it was unwarranted to dismiss the complaint. In so concluding, it is emphasized that reasonable men might, would, and do differ on how the jury as fact-finders, should have resolved the issue of fact. Indeed, the Appellate Division made it clear that, in any event, it viewed the verdict in favor of plaintiff as against the weight of the credible evidence. On dismissal of the complaint, however, the question is purely one of law and that is another matter.
Prefatorily, the court is unanimously of the view, as was the Appellate Division, that negligent tort-feasors may be liable for the wrongful death, by suicide, of a person injured by their negligence. Issues arise only on the sufficiency of the evidence to permit a jury to conclude as did the jury in this case.
The act of suicide, as a matter of law, is not a superseding cause in negligence law precluding liability. An initial tort-feasor may be liable for the wrongful acts of a third party if foreseeable. Thus a tort-feasor may be liable for the ensuing malpractice of a physician treating the victim for the tortiously caused injuries. No different rule applies when death results from an "involuntary" suicidal act of the victim as a direct consequence of the wrongful conduct.
That suicide may be encouraged by allowing recovery for suicide, a highly doubtful proposition in occidental society, is unpersuasive to preclude recovery for the suicide of a mentally deranged person. The remote possibility of fraudulent claims connecting a suicide with mental derangement affords no basis for barring recovery.
Thus, there is neither public policy nor precedent barring recovery for suicide of a tortiously injured person driven "insane" by the consequence of the tortious act.
In any event, this case was tried for all purposes in accordance with the prevailing law. Indeed, the jury was instructed, primarily, upon the theory of liability for a suicide by an accident victim suffering from ensuing mental disease, who was unable to control the "irresistible impulse" to destroy himself. The theory of the trial, therefore, determines the rule to be applied on the appeal.
Dr. Lewis was physically and mentally healthy immediately prior to the automobile accident in which he struck his head against the interior of his own vehicle. After the accident he suffered several epileptic seizures, often with unconsciousness. Before the accident he had never suffered a seizure. For seven months between the accident and his death, Dr. Lewis experienced no fewer than 38 separate seizures. The neurologist who treated him testified that as the result of the blow on the head he sustained a cerebral contusion which caused seizures and underlying hemorrhaging in the brain covering, destroying part of the brain. According to the neurologist, brain hemorrhage causes scarring which distorts impulses, producing further seizures, further scarring, cell atrophy, and wasting, in a deadly cycle. On the day of his death Dr. Lewis had three seizures.
The truncated description of the testimony demonstrates, and it is not seriously disputed, that there was sufficient evidence from which a reasonable person might conclude that the accident caused traumatic organic brain damage.
The only authentic issue is whether the suicide was an "irresistible impulse" caused by traumatic organic brain damage.
On the day of the suicide, only seven months after the accident, when Dr. Lewis had had three seizures, his daughter tried to speak with him but he did not respond. After the third seizure he seemed unable to recognize his wife, had a strange look, and locked himself in the bathroom. Twenty minutes later, his wife heard him mutter, "I must do it, I must do it", and then a gunshot rang out. Dr. Lewis had shot himself in the head and died the following day.
The treating neurologist testified as an expert that after the three seizures decedent was disoriented, lacked awareness, was irrational, and in postconvulsive psychosis which placed his conduct beyond his control.
In tort law, as contrasted with criminal law, there is recognition that one may retain the power to intend, to know, and yet to have an irresistible impulse to act and therefore be incapable of voluntary conduct. This court has recently recognized in the context of contract law that out-dated cognitive tests of mental soundness do not accord with modern knowledge or experience. The issue in this case was, precisely, whether Dr. Lewis, who obviously knew what he was doing and intended to do what he did, nevertheless, was because of mental derangement, incapable of resisting the impulse to destroy himself. Precedents and modern knowledge say that that could have been. The jury found that it was so.
Of course, there may be and undoubtedly have been cases where the causal nexus becomes too tenuous to permit a jury to "speculate" as to the proximate cause of the suicide. And the tenuous link is not strengthened or made more real by however strong a verbalization of cause.
A suicide is a strange act and no rationalistic approach can fit the act into neat categories of rationality or irrationality. When the suicide is preceded by a history of trauma, brain damage, epileptic seizures, aberrational conduct, depression and despair, it is at the very least a fair issue of fact whether the suicide was the rational act of a sound mind or the irrational act or irresistible impulse of a deranged mind evidenced by a physically damaged brain. It would be illogical to conclude otherwise. Consequently, although the Appellate Division in exercise of its supervisory power to review the facts could set the jury verdict aside, it was impermissible for it to dismiss the complaint.
Since the Appellate Division, in reversing, stated that in any event it would have set the verdict aside as contrary to the weight of the evidence, the verdict in favor of plaintiff may not be reinstated and a new trial is required.
Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial directed.