
    Martha Benard and Maude Benard, Appellants, v. The Protected Home Circle, Respondent.
    Fourth Department,
    March 4, 1914.
    Insurance — action upon policy of life insurance — defense of suicide — answer alleging suicide, construed — affirmative defense — burden of proof—presumption in favor of mistake rather than suicide.
    Where, in a.n action upon a contract of life insurance, it is conceded that the insured died from carbolic acid administered by his own hand, an answer, alleging suicide as the sole defense and pleading the self-destruction clauses of both the by-laws and the certificate of insurance, which are sufficiently broad to avoid the policy regardless of the mental condition of the insured, should be so construed as to embrace all acts of self-destruction regardless of the mental condition of the subject.
    Evidence examined, and held, insufficient to establish the defense of intentional self-destruction with such clarity as to permit the court to dispose of the matter as a question of law.
    The defense of self-destruction is affirmative, and the burden of sustaining it rests upon the defendant.
    Where the defense of intentional self-destruction is pleaded, a presumption obtains in favor of mistake, rather than suicide, and is conclusive until the contrary is shown.
    Appeal by the plaintiffs, Martha Benard and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cattaraugus on the 9th day of October, 1913, upon the verdict of a jury rendered by direction of the court. Ho tice is given of plaintiffs’ intention to bring up for • review upon the appeal the interlocutory judgment herein.
    
      Henry Donnelly, for the appellants.
    
      George A. Larkin, for the respondent.
   Lambert, J.:

This is an action to recover upon a contract of life insurance issued by the respondent upon the life of George Benard. The issuing of the certificate, the payment of all premiums due and the death of the insured are all conceded. The defense is based upon the conceded fact that Benard died from carbolic acid administered by his own hand. In this connection there is invoked a suicide clause in both the certificate of insurance and in the by-laws of the respondent. Both these clauses are set forth in full in the answer.

Plaintiffs do not attempt to combat the proof that the insured met his death from self-administered carbolic acid, and that conclusion is required from the evidence. But to escape the consequences of the provisions in avoidance of the policy plaintiffs advance two arguments.

It is first, urged that the defense in avoidance is affirmative in character, and that its burden rests upon the respondent; that respondent, in its answer, has urged the sole defense of suicide; that the act of suicide, under our decisions, implies and requires that the suicide be a sane person, capable of appreciating the character and consequences of his acts; and that the evidence in this case presents a question of fact as to whether or not the insured was possessed of that degree of mentality. It is true that our Court of Appeals has held that an insane man cannot commit suicide. That suicide implies a mental appreciation of the act such as an insane man could not have. (Meacham v. New York State M. B. Assn., 120 N. Y. 242; Shipman v. Protected Home Circle, 174 id. 398.) But this entire argument rests upon the narrow construction of the.answeras.raising solely the defense of suicide: in its strict sense. I cannot accede to that construction of this pleading. The answer pleads the self-destruction clauses of both the by-laws and the certificate. Such clauses, as will be seen from an examination of them, are sufficiently broad to void this policy regardless of the mental condition of the insured, and it, therefore, seems to me that in asserting “suicide” as a defense the defendant should be deemed to have, used that term in its colloquial sense, as embracing all acts of self-destruction, regardless of the mental condition of the subject.

The second argument of the appellants is somewhat different and has more merit. It must be conceded that the defense of self-destruction is affirmative, and that the burden of sustaining it rests upon the defendant. In establishing that defense it was incumbent upon the defendant to negative the possibility of this acid having been taken by mistake. For if taken through error then clearly the clause of the policy in avoidance is not applicable. It is urged by appellants that defendant has not met that burden so conclusively as to resolve that question into one of law rather than one of fact. The effect of the holding of the trial court in directing a verdict for the plaintiffs for the amount only of premiums paid, is that the evidence adduced upon this affirmative defense by both sides permits but the single inference that the acid was taken intentionally. If such court was right in this conclusion then such question was properly handled as one of law. But if contrary inferences are permissible from such evidence then such evidence should have been submitted to the jury.

Briefly stated, the evidence pertinent is as follows: The insured was a young man about thirty-eight years of age. He was a barber by occupation, owning his own shop. • For some years his health had been poor, requiring him at various times to seek employment taking him into the outdoor ah*. He suffered great pain at intervals. His eyesight was poor, the sight of one eye being almost entirely gone. He was under a physician’s care and customarily carried upon his person bottles of remedies, at least one of which was a four-ounce bottle. On the day of. his death and about two hours previously thereto, he purchased of a druggist a four-ounce bottle of carbolic acid. He had made similar purchases before. That particular kind of acid was in use by him for sterilizing his barber tools. Just before his death he went into a saloon and with a pencil wrote something upon a piece of paper. He then called for a glass of beer and took it to a table in the place. Soon after-wards he called for another saying that he had broken the first. Although no broken glass was to be seen, the bartender gave him another, which he took into the watercloset. He was next seen coming out of the closet, when he stated that he had killed himself. Of several persons he requested a physician. One was summoned, but insured soon died. His lips, mouth, throat and stomach were found to be burned with carbolic acid. The bottle of acid was found upon him, about one-third emptied. Upon his person a letter was found addressed to his wife (presumably the one he had just been writing). That letter is not produced, but two witnesses give its contents in general terms. They say it asked his wife to forgive Trim and that she take care of the children. One witness says it contained the statement that he could stand it no longer and that it expressed love for his wife.

It further appears that previously the insured had had issued to him a revolver permit; that his wife, one of the plaintiffs, observed him standing in front of a looking glass with the revolver in his hand, and that she thereupon requested the cancellation of the permit and secured possession of the revolver.

By reason of his frequent use of carbolic acid in his business this particular purchase proves little in aid of defendant, tt is as compatible with mistake as with the intentional taking thereof. The circumstances of the taking of the acid (except the writing of the letter) are also easily to be reconciled with mistake and perhaps his requests for a physician even tend to support the theory of mistake more strongly than that of intention. The letter affords the greatest argument in favor of the defendant. But the contents of that letter are hazily given, and from the portions recollected it may be that a more contrary inference is drawn than would be present if the missive itself was before the jury complete. Defendant finds further assistance in the previous occurrences with the revolver, urging a tendency to take his own life, to he shown therefrom. It does not appear, however, that he ever made any actual attempt so to do, and the evidence is not of strong probative value in and of itself.

On the other hand, the ill-health and suffering of the insured, his poor eyesight and his custom of carrying his physician’s remedies in bottles of the size and character of the one containing this acid, are all circumstances that tend to weaken the theory of intention and to support that of mistake. There is no evidence of any preannouncement of intention to destroy himself, nor is there any circumstance shown which differentiates his life on that day from what it had been repeatedly and continuously theretofore.

Added to these circumstances is the legal presumption, first, of sanity and, next, against suicidé. Sanity, being the normal condition of mankind, its existence is presumed until the contrary is shown. Suicide, being unlawful and immoral, the presumption obtains in favor of mistake rather than suicide and is conclusive until the. contrary is shown.

I am of the opinion that the defendant did not make out its defense of intentional self-destruction with such clarity as permitted the court to dispose of the matter as a question of law. It seems to me that a jury might find from all the circumstances that this acid was taken by mistake and in the belief that it was medicine proper to take. If I am right in this, then a jury question was presented and a reversal is required.

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the ¿ nt.

All concurred.

Judgment reversed and new trial granted, with costs to appellants to abide event.  