
    Anita B. White, Respondent, v. The Prudential Insurance Company of America, Appellant.
    First Department,
    June 14,1907.
    Insurance — evidence — presumption, against suicide — facts showing • suicide of insured.
    There is no presumption that a person will 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. But the presumption must yield to evidence from which no other reasonable inference than-suicide can be drawn.
    In an action to recover on an insurance policy which- exempted the insurer if the insured committed suicide'within one year, it was shown that the insured, who-had been ill .but had been, discharged “as cured,” was found, dead in her room with both gas jets turned on but not lighted. There was no evidence tending to show that the gas had been blown out, or had been turned off and then turned on. ■ On all the evidence,
    
      Held, that'a verdict for the plaintiff was against the weight of evidence. .
    In such.action it is error to admit wholly speculative expert testimony based upon no facts proven showing how the supply of gas might have been cut off and then renewed.
    Patterson, P. J., dissented.
    ' Appeal by the defendant, The Prudential Insurance Company ' of America, from a judgment of the. Supreme -Court in favor of ■the .plaintiff, entered in the-office of the clerk of the county of New York on the 1st day of December, 1906, upon the verdict of a jury, and -also from- an order entered in said clerk’s office on the 3d day of December, 1906, denying the defendant’s motion for a new . trial made upon, the: minutes.
    
      William Ogden Campbell, for the appellant.
    
      Joseph M. Hartfield, for the respondent.
   Laughlin, J.:

' This is an action on a policy of insurance, issued by the defendant on the 16th day of February, 1903, on the life of Louise L. Buxton, by which tile defendant agreed to pay the plaintiff $500 on her death in accordance with the ■ provisions of the policy. Under the head “ Provisions ” ■ th.e policy contained a clause, as follows :

“ Suicide.— If within one year from, the date hereof the Insured shall die. by suicide — whether sane or insane — or in consequence of his (or liér) own criminal'action the liability of the Company shall not exceed the amount of the premiums paid on this Policy.”

The insured died on the night of the 12th or morning of the 13th day of September, Í9Ó3, within one year after the policy was issued, and the company refused to pay the insurance upon the ground that she committed suicide. This was the issue litigated upon the trial. The plaintiff proved the issuance of.the policy and the death of the insured. The defendant then showed that the insured rented and. lived in a room on the top floor of PTo. 28 West One Hundred and Fifteenth street; that some time prior to hér death she had an operation at St. Luke’s Hospital and thereafter suffered from hemorrhages ; that the physician, of whom she rented the room and who attended her in part during her illness, had discharged her “ as cured ” about two weeks before her death; that about seven o’clock on the evening óf the twelfth of September the insured came down stairs to the sitting room of the house with a paper which she 'asked her landlord to read; that “ she appeared greatly excited. . Her eyes were very glassy in color. * * * Her hair was somewhat disheveled, which was unusual with her, and she said nothing. Said she was going to look over 'some papers ” and asked the landlord to read the one she gave him, which was poetry in printed form; that at or about three o’clock in the afternoon on the thirteenth of September she was found dead “lying in a normal position on the bed, with the cover over, just a"s a person undressed would do; ” that the two gas jets in the room were fully turned' on and the 'room was tilled with illuminating gas which caused her death by asphyxiation. The fact is not expressly shown, but it is to be inferred from the testimony given that the windows and door were closed. It appears, however, that there was “ no plugging around' them or anything of that character,” and there was nothing like a tube running from that gas or a funnel or anything 'of that kind running from the jet.” The bed was in its usual place, which evidently did not bring the head of it under or near the gas jets, for it was shown that “ the bed had not been pushed so as to get it under the gas.” The landlord, who was a physician and gave the only material testimony with respect to. the condition of the room in which the insured' was found, testified that she probably had been dead since early morning or the night before.” It was shown that the gas jets “ turned no more easily than the ordinary gas jets.” There is no evidence that any one entered the room from the time the insured retired until she was-f ound dead, nor is there evidence tending to show that the bed was in a position where she could read, or that she attempted to read after retiring or of other facts from which it might be inferred that she fell asleep with the gas burning. The evidence does not explain how the two gas jets were turned on, except upon the theory that it was done by the decedent, nor is there any evidence in the record tending to show that the gas, while turned on in the room, wás turned off or otherwise interfered with outside the room or building by which it might have entered the room after the flames had been extinguished to justify a finding that the decedent retired and fell asleep with.the gas burning, and that in some manner the supply of gas was thereafter shut off, and after the extinguishment of the flames turned on or came on again.

The law indulges in the presumption that a person will not take his own life, and where the fact's and circumstances are as consistent with death from negligence, by accident or homicide, as by suicide, the presumption is against suicide. (Germain v. Brooklyn Life Ins. Co., 30 Hun, 535; Goldschmidt v. Mutual Life Ins. Co., 102 N. Y. 486; Mallory v. Travelers' Ins. Co., 47 id. 52; Travellers' Insurance Co. v. McConkey, 127 U. S. 667.) This is a presumption, however, which yields to evidence tending to show that death was. self-inflicted, and where np other reasonable inference may be drawn from the evidence, it is the duty of the court to direct a verdict upon the theory of death by suicide. (Pagett v. Connecticut Mutual Life Ins. Co., 55 App. Div. 628; Seybold v. Supreme Tent, 86 id. 195; Johns v. Northwestern Mut. Relief Assn., 90 Wis. 332.) In this state of the evidence, without a fact or circumstance tending to show that the gas had been turned off outside the room and turned on again, or that the supply of gas to these open jets'had been in any manner interfered with, or that there was any door or- window open, or wind or draft which might have extinguished the flames, the plaintiff called a witness in rebuttal, who was a gas engineer, and was permitted to show, over the objection and exception taken by defendant, that the presence of the gas in the room might'be accounted for upon the theory that there was a leak in the service that ran from the main to the meter, or a leak in the main, so that the water from the street might have entered the main and stopped the flow of gas, which would have extinguished the flames, and that after the water was drained out of the pipes the gas would have passed along the pipes again and have entered the room, or if the gas main was small and the pressure was poor, and the lateral supply pipes were small and there was “ á gas engine or any other arrangement using gas ” in large quantities suddenly, “ it would create a vacuum and put the lights out, and as soon as the gas engine had stopped, the gas pressure would come on again and fill the house.” This expert also ventured the opinion that if only one gas jet had been turned on it would have been possible to turn it on accidentally in attempting to extinguish the light, but even he would not hazard the view that this might have occurred as to the two gas jets. We are of opinion that this evidence was both incompetent and prejudicial. It was wholly speculative. There was no proof of the existence 'of a single fact in this case upon which the theories of the expert were based. The jury would naturally infer that they would be at liberty, in view of this presumption against suicide, and of the reception of this evidence under objection and' exception, in indulging in the inference that someone of these conditions, which, in the opinion of the expert, would have accounted for the presence of the gas in the room and have indicated that death was accidental, existed. This error requires a new trial.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. ' ■

McLaughlin, Houghton and Scott, JJ., concurred ; Patterson, P. J., dissented.

Judgment and order reversed, new tidal ordered, costs to appellant to abide event.  