
    Johanna Harms, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    
      Insurance — whether an insured was a suicide, when a question for the jury.
    
    In an action upon a policy of life insurance, in which the question litigated was ' whether the insured had committed suicide, it appeared that the insured registered at a hotel at about eight o’clock in the evening and then went to his room; that on the following morning he was found dead in the room, the door ef which was locked on the inside; that three letters written by him, the contents of which did not appear, were found in the room, one directed to his wife, one to the chief of police and one to his employer. A box of white powder - was found on the bureau and a glass containing .a sediment. A physician testified that he had tasted the powder and the contents of the glass and thought the substance was corrosive sublimate, but that he had made no test sufficient to enable him to express an opinion about it.
    It further appeared that the insured was found lying on the bed in a composed and natural attitude, with his limbs straight, and there was evidence that if a person dies from the use of corrosive sublimate he dies in excruciating agony, and in a state of convulsion with his limbs drawn up and distorted. ■ No other poison than corrosive sublimate was suggested.
    - Held, that the question whether the insured met his death by Suicide was properly submitted to the-jury, and that a verdict in favor of the plaintiff should not he disturbed.
    Appeal by the defendant, the Metropolitan Life Insurance Company, from • a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the' clerk of the county of . Kings on the 8th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of February, 1901, denying’ the defendant’s motion for a. new trial made upon the minutes.
    
      C. N. Bovee, Jr., for the appellant.
    
      Henry A. Powell, for the respondent.
   Goodrich, P. J. :

The action is brought upon a policy of insurance upon the life of the plaintiff’s husband. The policy contained a clause, If the insured * * * die by his own hand pr act, whether sane or insane, the company shall not be liable for a greater sum than the. premiums.” The question litigated was whether the insured had committed suicide. The jury found a verdict for the plaintiff, and the defendant appeals.

The insured died at a hotel on Ooney Island, where he had registered as a guest at about eight p. m. He drank at the bar'and then went to his room and ordered a glass of beer. He Was found dead in his room on the following morning, the door being locked on the inside. Three letters written by him were found in his room,, one directed to his wife, one to the chief of police, and one to the superintendent of the Nassau Railroad Company, in whose employ lie was. The contents of these letters do not appear. A box of white powder was found on the bureau, and a glass containing a sediment. Dr. Pierce testified that-he had tasted the powder and the contents of the glass, and thought the substance was bi-chloride of mercury, commonly known as corrosive sublimate, but he had made no. test sufficient to enable him to express an opinion about' it. The deceased was found lying on the bed, in a composed and natural attitude, limbs straightened, and there is evidence that if a person dies from the use of corrosive sublimate he dies in excruciating agony, and usually in a state of convulsion, with his limbs all drawn up and distorted.

The evidence was such as to raise a fair question of fact whether Harms came to his death by his voluntary act,.either by the use of corrosive sublimate, and no other poison is suggested, or otherwise.

A curiously similar case is that of Goldschmidt v. Mutual Life Ins. Co. (35 N. Y. St. Repr. 121), in which the General Term of the first department, Mr. Justice Willard Bartlett writing, on evidence substantially similar to that in the present action, held that it was proper to submit to the jury the question of suicide The court said (p. 125): “ While the defendant’s view of this man’s death may be the true one, it does not seem to me to he supported by such a preponderance of evidence as to warrant the withdrawal of the question from the consideration of a jury.” So we cannot say that at the trial of the action at bar there was any such preponderance of evidence as to require a reversal of the judgment. The burden of proving death by suicide was upon the defendant, the natural presumption being against death by suicide. (Whitlach v. Fidelity & Casualty Co., 78 Hun, 262; Mallory v. Travelers' Ins. Co., 47 N. Y. 52.) A person reading the evidence might well have a doubt whether Harms “ intentionally took his life ” or whether he came to his death by the use of corrosive sublimate, and if he did, whether he intended to use it for the purpose of suicide. No other suggestion of the agency of death is made by the defendant, and the composed attitude of his body was not consistent with the use of corrosive sublimate. The question was pre-eminently one to he decided by a jury, and with their finding we do not feel called to interfere.

The judgment and order should be affirmed.

Bartlett, Woodward, Hirschberg and Sewell, JJ., concurred.

Judgment and order affirmed, with costs.  