
    Josephine Whitlatch, Appl’t, v. The Fidelity & Casualty Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    1. Insurance (Accident)—Suicide—Burden of proof.
    In an action upon a policy of accident insurance where the answer alleges as a defense that the deceased intentionally inflicted the injuries, the burden of proof to establish that fact is upon the defendant, and if the proof fails to show whether or not the injuries were intentional the defense is not made out, and it is error to refuse to so charge.
    2. Same—Charge.
    It is also error to charge that if the injuries resulting in death were caused by intoxication a recovery could not be had, where no such defense was pleaded nor any proof given upon the subject.
    Appeal from judgment in favor of plaintiff, entered upon verdict for $100 and interest.
    Action brought upon a policy of accident insurance upon the life of plaintiff’s husband, James W. Whitlatch, who was found dead from a pistol shot wound in the top of his head, in his bed in a hotel, with a revolver close to his left hand, but with no marks of powder on his head. The answer denied the allegations of the complaint except that defendant was a corporation, and set up as a defense that the injuries were intentionally inflicted by the deceased, and, therefore, under the policy defendant was liable only to the extent of $100.
    The court charged that “ While it is the presumption that from the death alone you are not to assume that it was suicidal, and that evidence must be adduced to show that the party did take his life, still the burden of proof is on the plaintiff to show by a preponderance of evidence that it was done by accident, that is, without the intention to take the life.”
    Having been requested to charge that the burden was on defendant to establish that the injury from which the insured died was voluntary or intentional on his part, the court, at the close of the charge, remarked: “ I think I have covered everything ' except the question of the burden of proof as to suicide. I do not intend to change it from the way-1 left it. It seems to me to be the same as in a case of negligence, where facts might raise a presumption of negligence, and it still leaves, upon the whole case, the burden upon the plaintiff.”
    Plaintiff’s counsel: “ Do you mean to decline to charge that the burden of proving the intent to commit suicide is on the defendant ?”
    The Court: “ I decline to charge it other than charged; it is probably more a question for the school-men than a practical matter. As matter of abstract law, I would say it seems to be laid down that the presumption is against suicide. It must be shown affirmatively either by direct evidence or by facts and circumstances tending to show that the party had a suicidal intent, and I assume if the evidence should come to a point as to leave it exactly balanced whether it was or not, then the burden of proof would be on the plaintiff to satisfy you that it was an accident and within the terms of the policy.”
    
      Thomas Darlington (John L. Hill, of counsel), for app’lt; Charles C. Nadal (Thomas S. Moore, of counsel), for resp’t.
   Pratt, J.

The appeal brings up the question whether the verdict is so against the weight of evidence that it should be set aside, and also whether there were errors committed in the charge to the jury requiring a reversal.

The deceased was found dead, with a discharged pistol by his side, and the - defense may fairly claim it to be established that death was caused by the ball discharged from that pistol.

But we do not succeed in finding proof that deceased voluntarily discharged the pistol, much less that he did so with intent to take his life. While the position of the wound does not preclude the possibility of the weapon having been held in the hand of deceased, it at least renders it improbable. And the letters written that evening do not disclose any expectation of death, but the contrary. Mr. Whitlatch is shown to have been singularly free from the weaknesses that lead to suicide.

But we do not need to decide the question whether the verdict should be set aside as contrary to the weight of evidence, for the reason that errors were committed in the charge that require a new trial.

The court properly refused a non-suit, thereby ruling that plaintiff had made a prima facie case.

The only affirmative defense open to defendants under the pleadings is found in the averment that deceased intentionally inflicted the injuries. Being an affirmative defense, unless proved, plaintiff was entitled to recover.

The burden of proof to establish intentional injury rested upon the defendant. If the proof failed to show whether or not the injuries were intentional, the defense was not made out Plaintiff was not required to prove a negative. Travelers' Ins. Co. v. McConkey, 127 U. S., 661.

The cases of negligence referred tó are not in point, for in this state it is held that freedom of plaintiff from negligence is the foundation of his case and must be affirmatively proved.

Were it the law that plaintiff must allege and prove that death did not result from suicide, a demurrer might have been successfully interposed, as no such allegation is found in the complaint.

The court declined to charge in accordance with these views, and the exception thereto must be sustained.

The court also charged that if the injury resulting in death was caused by intoxication the plaintiff could not recover. No such defense was pleaded, nor was any proof interposed which warranted the charge. For these errors a new trial should be had, with costs to plaintiff to abide the event.

Barnard, P. J., and Dykman, J., concur.  