
    Betty Herschkowitz and Tilley and Jack Herschkowitz, by their Guardian ad litem, Betty Herschkowitz, Respondents, v. The Mutual Life Insurance Company of New York, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1916.)
    Insurance (life) — action to recover on policy of — evidence — verdict.
    Where in an action to recover on a policy of life insurance suicide of the insured is pleaded as a defense, and the proof is that he was found in his bedroom at six o ’clock in the morning either dying or actually dead and that his death was caused by asphyxiation from illuminating gas, but there is no evidence as to how the gas escaped nor as to any other surrounding circumstance which might tend to show any intent on the part of the deceased to take his life, the evidence is insufficient to overcome the presumption against suicide, raises no question of fact for the jury and plaintiff was entitled to the direction of a verdict in her favor.
    Where one who loaned decedent considerable money testified, without objection, that he went to the apartment of the deceased at nine o’clock of the morning of his death and that he had received a letter from him which decedent’s widow had taken from the witness at the cemetery, the exclusion of his testimony as to the contents of the letter was erroneous as it might have shown an intent on the part of decedent to take his life and thus raise a question for the jury.
    Defendant’s offer to prove by an inspector of the gas company that he examined the gas fixtures on the afternoon of the day of decedent’s death and found them in good condition was excluded on the ground that to lay a proper foundation defendant must prove that no one having access to the apartment that day had changed the position of the fixtures. Held, that the ruling was too strict, the fair presumption being that if the fixtures were imperfect in the morning they would so remain until the inspector came later in the day.
    Appeal from a judgment in favor of the plaintiffs and against the defendant, entered in the City Court of the city of New York.
    Frederick L. Allen (Murray Downs, of counsel), for appellant.
    Joseph P. Segal (I. Gainsburg, of counsel), for respondents.
   Lehman, J.

The plaintiffs have obtained a judgment upon a policy insuring the life of Benjamin Herschkowitz.

The defendant set up in its answer that Herschkowitz committed suicide.

The evidence in the case shows only that the deceased was found in his bedroom about six o’clock in the morning either dying or actually dead and that his death.was caused by asphyxiation from illuminating gas.

There is no testimony as to how the illuminating gas escaped nor as to any other surrounding circumstances which might tend to show any intent on the part of the deceased to take his life.

The law indulges in the presumption that a person will not take his own life, and where the facts and circumstances are as consistent with death from negligence, by accident or homicide, as by suicide, the presumption is against suicide. ’ ’ White v. Prudential Ins. Co., 120 App. Div. 260, and cases there cited. It seems to me that the evidence actually admitted is totally in - sufficient to overcome the presumption and raised no question of fact for the jury, and the trial justice was hound to direct a verdict.

The trial justice erred, however, I think, in the exclusion of certain evidence by which the defendant attempted to overcome the presumption. It appears that one Matis Harris had loaned to the deceased a considerable sum of money. Harris testified without objection that he went to the apartment at-nine o’clock in the morning and that he had received from the deceased a letter. He further testified that the widow had taken away the letter from him at the cemetery. The witness was not permitted to give oral testimony as to the contents of this letter, apparently upon the ground that the letter was the best evidence. Obviously this objection would be of no force if the plain' tiff had received notice to produce. In this case none was served but the plaintiffs’ counsel at the trial stated ‘ ‘ irrespective of that, if we had any such letter we would produce it but we have none. ’ ’ The defendant thereby waived this objection and upon this appeal does not seek to sustain the ruling on this ground, but urges that there is no competent proof that the letter was sent by the deceased or in his handwriting.

Aside from the fact that no such objection was properly raised at the trial, Harris was permitted to testify that he had received the letter from the deceased, and another witness who knew the deceased’s handwriting was not permitted to testify that the letter was in his handwriting. If the witness had been permitted to testify as to the contents of this letter it might have shown an intent on the part of the writer to take his life and thereby have raised a question of fact for the jury.

The defendant also attempted to prove by an inspector from the gas company that he examined the gas fixtures the same afternoon and found them in good condition. This evidence was excluded on the ground that to lay a proper foundation the defendant must prove that none of the people having access to the apartment that day had changed the condition of the fixtures. It seems to me that this ruling was too strict. It is a fair presumption that if the fixtures were imperfect in the morning they would remain in that condition until the inspector came there in the afternoon.

Judgment should, therefore, be reversed and new trial ordered, with costs to appellant to abide the event.

Weeks and Delehanty, JJ., concur.

Judgment, reversed and new trial ordered, with costs to appellant to abide event.  