
    Peter Guldenkirch and another, Resp’ts, v. The United States Mutual Accident Association, App’lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed May 27, 1889.)
    
    1. Insurance (accident)—Policy—Conditions—Question op pact.
    In an action to recover upon an accident insurance policy issued to one <4, who died from injuries produced by a pistol shot fired by one Green, the policy insured G. against personal bodily injuries through external violent and accidental means. The insured had gone to Green’s house fosee his sister, to whom he was married, and while there had some trouble with Green, who wanted the insured to leave. There was direct testimony that no scuffling was heard, and also tending to show that the shooting happened without the aid or design of the insured, and was unforeseen by him. Held, that whether the death of the insured was accidental was a. question for the jury.
    
      2. Same—Breach op condition—Burden op proop.
    The company pleaded as an affirmative defense, a condition in the policy that the insurance should not cover intentional injuries inflicted by the insured or any other person. Held, that the burden rested on defendant to establish that the condition was broken; also that whether the injury was intentional was a question of fact to be inferred from the act itself and the surrounding circumstances.
    3. Same—Statement op coroner—Competency op.
    The statement of the coroner, who filled up the “attending physician’s, statement,” was not evidence on this point, he having no personal knowledge of the matter, but simply giving his opinion.
    
      Stickney & Shepard, for pl’ffs and resp’ts; William B. Smith, for def’t and app’lt.
   Clement, Oh. J.

This action was brought to recover upon a policy of accident insurance, issued by the appellant to one Nicholas Guldenkirch, who, on the 26th day of March, 1888, died at the city of Brooklyn from injuries produced by a pistol shot, fired by Charles H. Green. The policy insured Guldenkirch against personal bodily injuries through external, violent and accidental means, and if death resulted from such injuries alone, the defendant agreed to pay to the plaintiffs, his father and mother, the sum of $50,000. It also contained several conditions, one of which was that the insurance should not cover intentional injuries inflicted by the insured or any other person. The'clause in the policy as to proofs of death required the beneficiaries to make affirmative and positive proof that such death resulted from bodily injuries covered by the insurance, and within six months of the happening of the accident. The above statement of the policy covers all that it is essential to refer to in deciding this case.

At the trial, at the end of plaintiff’s case, a motion was made to dismiss the complaint, which motion was denied, and the defendant offering no testimony, the case was submitted to the jury, under a charge to which no exception was taken by either party, and a verdict was rendered for the plaintiffs. A motion for a new trial on the minutes was denied, and from the order denying such motion and the judgment entered on the verdict, this appeal is taken. There is no exception in the case, except to the denial of the motion to dismiss.

The plaintiffs proved that on the evening of March 26, 1888, the door bell of the house occupied by Green and his sister rang, and that Green went to the door, and about five minutes afterward the report of a pistol was heard, and a nurse in the house, who was in the basement, went Tip the stairs, passing Green at the head, and there found Guldenkirch with his overcoat on, lying on the floor, and Dr. Olcott was sent for, who testified that he found Guldenkirch on the floor of the hall, suffering from a pistol wound in the head. Voices were heard in the hall before the report of the pistol, and a witness in the' case testified that Green said to Guldenkirch, “ You cannot go up stairs.” There was no scuffling and no loud noise.

It was conceded, on the trial, that Guldenkirch had been married to the sister of Green for six years prior to the shooting, though she was known in the house of her brother as Miss Green. She was an invalid and confined to her bed, and Guldenkirch had visited her for several evenings prior to the night he was shot, and on the night of March 23d, it is claimed by the appellant, had had words with Green in the bedroom of the sick woman; but the testimony on this point is meagre and vague, and is capable of two constructions; one that there was trouble between the two men, and the other that the sick woman did not want her husband to go home, and that the brother urged her to allow him to leave, as it was about ten o’clock and as she might be disturbed. The nurse heard no dispute between the two men, and after the trouble, whatever it was, they conversed together in the hall. Green’s •conduct could be explained on either theory, that he was angry with Guldenkirch for visiting his sister, or that he (Green), from love of his sister, did not think she was in a proper condition to see or talk to any one. There is no proof in the case that unfriendly relations had existed between the two men, except as before stated, and there is no evidence that Green had objected, except on the two •occasions, to the visits of Guldenkirch to the bedroom of his sister, and it does not appear that Green did not know of the marriage. Guldenkirch visited his wife on Thursday, Friday, Saturday and Sunday evenings immediately, before the 26th of March which was a Monday. There was no one present at the shooting except Guldenkirch and Green, and neither party at the trial saw fit to call Green as a witness.

The plaintiff was bound to prove that Guldenkirch died from external, violent and accidental means. There is no dispute, in the case, that Guldenkirch died from the pistol shot, but the contention is that the shooting was not accidental. The court of appeals have recently determined the meaning of the expression in the policy “accidental means.” “ An accident is the happening of an event without the aid and the design of the person, and which is unforseen.” Paul v. Travelers Ins. Co., 112 N. Y., 472; 21 N. Y. State Rep., 624. The testimony in the case tends strongly to show that the shooting was accidental in so far as Guldenkirch was concerned. The shooting happened without his aid and design and was entirely unforseen by him.

There is a strong presumption against suicide, and direct testimony that no scuffling was heard by a person in a room on the next floor with the door open into the hall. There was also evidence that Guldenkirch was taking medicine to his sick wife, and, therefore, went to the house for a good reason. The question whether the death was accidental was a proper one to be decided by the jury on the evidence, and their verdict on that question cannot be disturbed. The cases of The Travelers’ Ins. Co. v. McConkey (127 U. S., 661), and Mallory v. Travelers’ Ins. Co. (47 N. Y., 52), are in point.

The company pleaded, as an affirmative defense, the condition in the policy that the insurance should not cover intentional injuries inflicted by the insured or any other person, and on this issue we are of opinion that the defendant had the affirmative and was bound to satisfy the jury, by a fair preponderance of evidence, that the condition had been broken. Murray v. N. Y. Life Ins. Co., 85 N. Y., 236; Slocovich v. Orient Mutual Ins. Co., 108 id.. 56; 12 N. Y. State Rep., 806.

Was the testimony on this question sufficient to hold, as a matter of law, that this defense had been made out ?

The statement of the coroner was not evidence at all on this point, because he had no personal knowledge of the matter, and simply gave his opinion. The blank proofs of death were received from the company, and one was headed “ attending physician’s statement,” which was properly filled up by the coroner, who, by law, gives the burial certificate when the attending physician declines so to do. If a man does another an injury, it does not follow, as matter of law, that such injury is intentional, and in civil and criminal cases intention is a question of fact to be inferred from the act itself and the surrounding circumstances.

The counsel for the appellant cites the case of The People v. Conroy (97 N. Y., 62). That case does not hold that intention is to be inferred on proof of the act of killing, but the learned chief judge distinctly says that it is the province of the jury to determine the character of the act. See, also, People v. Stokes, 58 N. Y., 164.

In this case where the burden of proof was on the defendant, it would not have been right for the court to draw inferences from the testimony as to what took place in the hall when Guldenkirch was shot. The question was one peculiarly within the province of the jury, whose duty it is to weigh testimony and draw conclusions therefrom.

The defendant received the proofs of death and kept the same, and made no objection thereto. The proofs were a compliance with the terms of the policy, and if the company had desired anything further, they should have objected to those furnished.

We also think that the verdict was not against the weight ■of evidence, for the reasons already given.

Judgment and order denying a new trial affirmed, with costs.

Osborne, J., concurs.  