
    John S. Washburn, App’lt, v. The National Accident Society, Resp’t.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    
      1. iNsmtANCE (accident) — Suicide.
    The presumption of law is against the assumption of suicide where it appears that a violent death was the result either of accidental injuries or a suicidal act.
    3. Same.
    The body of the insured was found in Pennsylvania with a bullet hole back of the right ear through which the bullet had passed upward and forward into the brain. There was no s'gn of a struggle, his hand was unclenched and the pistol between his legs. No motive was shown why he should take his life. It was shown that insanity had never existed in the family, and the evidence was conflicting as to whether his hair was singed. Meld, that the question whether the death was suicidal was one for the jury, and that it was error to direct a verdict for defendant.
    3. Same — Evidence.
    Evidence of a physician that in case of instantaneous death there is an involuntary and immediate rigidity of the muscles, which would cause the hand to cling to the pistol, rendering it impossible for deceased, if he were a suicide, to place it between his legs after shooting, is competent and admissible on the question of suicide.
    Appeal from an order made at the Cattaraugus circuit on the 13th day of September, 1889, denying the plaintiff’s motion for a new trial on the minutes of the court, after a verdict for defendant rendered under the direction of the court.
    
      G. D. Davie, for app’lt; Stephen W. Collins, for resp’t
   Macomber, J.

This action is brought to recover of the defendant, which is a life and accident insurance company, organized upon the co-operative or assessment plan, the sum of $5,000 in pursuance of a certificate of membership issued to one Charles S. Washburn, of Carlton, N. Y., for the benefit of the plaintiff, who is the father of the assured. :

The policy was issued on the 3d day of November, 1886. On the 5th day of November, 1887, in the vicinity of Cooperstown, Pennsylvania, near a highway, in the center of a cleared space, which was surrounded by underbrush, the body of the assured was found with a bullet hole through the back of his head, which had caused his death. The bullet entered the skull an inch and a half back of the right ear, and passed through the brain, and its course inclined a little upward and forward nearly in the direction of the left eye. The deceased was twenty-one years of age, and for a while and immediately preceding his death was out of employment He had previously, however, been engaged as a salesman and bookkeeper in a county dry goods store at West Branch, N. Y. He was shown to have been a young man of temperate habits, no evil associations, of a cheerful disposition, industrious and honest. He was on the best of terms with all members of his family and had given, at times, a portion of his earnings to his mother and his sister. After leaving his employment he notified his father and mother that he was going away, but did not tell -them whither he was going. This was one week before his body was discovered. When found his right hand was lying by his ■right side unclinched, and between his legs lay a thirty-two calibre revolver with one chamber empty. The bullet found in his head corresponded to the calibre of the revolver. There was no evidence of a struggle, his clothes being free from dirt; his hat was placed a little to one side of him. The sum of five cents only was found upon his person, together with a receipt of payment of a premium to the defendant, a silver watch and a necktie pin made of a dollar-gold piece.

At the close of the evidence the learned judge at the circuit ■directed a verdict for the defendant upon the ground that the evidence, as viewed by him, conclusively established the fact that the ■deceased died by his own hand and that the payee of the policy 'Could not recover thereon, for by its terms no recovery could be had in case of suicide bv the assured whether sane or insane. This is the only question before us upon the merits of the case.

We are of the opinion, under all the circumstances attending the case, that the learned judge erred in withdrawing the consideration of the facts from the jury. The evidence was not altogether uncontradictory. One witness testified that there were marks of singeing of the hair on the back of the head, indicating that the revolver was placed close to the skull when fired.

Another witness, the undertaker, testified that he examined particularly to see in regard thereto, and found no marks of singeing of the hair by gunpowder or otherwise. It was also shown that insanity had never existed in the family of the deceased, either upon his father’s or mother’s side. This fact distinguishes this case from that of De Gogorza v. Knickerbocker Life Ins. Co., 65 N. Y., 232. There was no motive shown why he should take his own life. He had had no trouble with his employers nor with any other person. They had paid him fair wages, and he was well liked by them.

It is contended on the part of the defendant that the location of the wound and attitude of the body indicated suicide, and it is urged with equal force on the other side that the sanie matters indicated the contrary.

We think the inference to be drawn from all of the evidence was one of fact, and that the case did not present a question of law arising, as was supposed by the learned judge at the circuit, upon undisputed facts. The presumption of law is against the assumption of suicide where it appears that a violent death was the result either of accidental injuries or a suicidal act. Mallory v. Travelers Ins. Co., 47 N. Y., 52.

It was purely the province of the jury to interpret the facts and to pronounce the conclusion thereon. Undoubtedly different inferences may be drawn from such evidence, but this does not make the case one for the interposition of the court against the •province of the jury. If the conclusion from all of the facts is doubtful, it is error for the court to dispose of the same as a question of law. Powell v. Powell, 71 N.Y., 71; Belton v. Baxter, 58 id., 411.

' In the case of the Travelers' Ins. Co. v. McConkey,. 127 U. S., 661, the provision in the policy was substantially the same as in this one, namely, an insurance against death from external, violent and accidental means, and on which no recovery could be had in case of suicide by the assured whether he was sane or insane. It was held that death from external violence, shown by proof of a pistol shot through the heart of the deceased, raised a question of suicide or accident for the jury. In that case, however, the question was one, apparently, not of suicide or accidental shooting, but of suicide or murder. And it is contended by the learned counsel for the respondent that, under the terms of the policy before us, if the deceased was murdered, he cannot recover, for the provision of the policy is that in case of “intentional injuries inflicted by the insured or other person * * * no-recovery can be had.” The evidence disclosed by the printed case does not, in our judgment, call upon us to express any opinion as to the right of the plaintiff to recover in the case of the actual murder of the son.

The case of the plaintiff upon the question of suicide was sought to be strengthened by an offer of testimony by a physician to the effect that in cases of instantaneous death, as this was claimed to-be, there is an involuntary and immediate rigidity of the muscles; which would cause the hand to cling to the revolver, rendering it impossible for the deceased, if he was a suicide, to place the weapon between his legs after the shooting. This was objected to- and the objection sustained, to which an exception was taken. This evidence was within the realm of expert testimony and should have been admitted. Eggler v. People, 56 N. Y., 642.

The order appealed from should be reversed and a new trial granted, with costs to the plaintiff to abide the event

Corlett, J., concurs. Dwight, P. J., concurs on ground secondly stated in the opinion.  