
    Jennis Graus, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Supreme Court, Appellate Term, Second Department,
    October 22, 1943.
    
      Rowland H. Long for appellant.
    
      Louis M. Brass for respondent.
   Memorandum

Per Curiam.

Judgment unanimously reversed

on the law, with thirty dollars costs to defendant, and complaint dismissed with appropriate costs in the court below. Omitting any weight to the defendant’s case by the incompetent testimony of Dr. Zager, plaintiff failed to establish accidental death by a fair preponderance of the evidence. In view of the allegations of the bill of particulars and the death certificate furnished by plaintiff, when defendant established that deceased knew of the poisonous nature of muriatic acid, and also proved, without contradiction, that severe, instantaneous irritation is caused by the vapor of that acid, plaintiff could no longer rely on the presumption against suicide. (Jahn v. Commercial Travelers Mut. Accident Assn., 256 App. Div. 835.) With the presumption out of the case, plaintiff had the burden of producing evidence showing accidental death. No testimony was offered which contradicted the defendant’s proof as to the nature of muriatic or the vapor thereof. The plaintiff’s proof showed that deceased was warned about the danger of the acid. Neither was if shown that deceased had lost the power of smell or was temporarily, before taking the acid, deprived of his senses. Neither was it shown the acid and medicines he took were anything alike in their effect on the mouth. Nor did the plaintiff show that acid and medicine were kept in the same place or that the deceased said he had taken the acid by mistake. According to plaintiff, deceased selected the place for the acid. Plaintiff produced no one to establish that any quantity of muriatic acid could be taken without instantaneous notice of danger. Plaintiff did prove that deceased took medicines directly from bottles, but the record is barren of any proof that such medicine had a vapor which immediately irritated or was in any way like the acid.

Mac-Crate, McCooey and Steinbrink, J.T., concur.  