
    Minnie B. Landon, Respondent, v. The Preferred Accident Insurance Company of New York, Appellant.
    
      Insurance against death by violent or accidental means—finding of the body of the insured, in the water— competency of his statements as to where he was going.
    
    In an action brought upon a policy of insurance, by which the defendant insured the plaintiff’s husband against the effects of bodily injury by external, violent and accidental means, and agreed to pay the plaintiff a certain sum if the insured should die from such injury alone within ninety days after its happening, it appeared that on October 21, 1897, the insured left home in good spirits to go to his business in the city of New York: that at about two o’clock of the same day he was at 'his office and stated to one of his office associates.that •he intended to go to Staten Island on business and invited him to accompany him. This was the last occasion on which the insured was seen alive, and on the twenty-ninth day of the same month his body was found in New York bay, near the shore of Staten Island, its condition indicating that it had been in the water from seven to ten days, and that the insured had struggled while in the water and had lost his life by drowning. Several valuable articles were found in the insured’s pockets..
    
      Held, that the declaration by the insured as to his intention to visit Staten Island was properly received, and that the evidence warranted a finding that the insured had met his death proximately and solely from accidental causes.
    Appeal by the defendant, The Preferred Accident Insurance^ Company of New York, 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 24th day of March, 1899, Upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      Hamilton Wallis, for the appellant.
    x William S. Lewis [Halcyon M. Close with him on the brief], for the respondent.
   Hatch, J.:

This- action is brought to recover upon, a policy of accident insurance- issued by the Preferred Mutual Accident Association and, assumed by the defendant. By the - terms of the policy Mills H. Land on became insured against the effects of bodily injury by external, violent and-accidental means. If from such injury alone death resulted within ninety days from the happening thereof the defendant agreed to pay Minnie B. Landon, the plaintiff and wife of the deceased, the sum of $5,000. A condition of the policy is that no-recovery for death shall be had unless it be established that such death resulted proximately and solely from accidental causes. The evidence established the death, and that such death was caused by drowning. It.was not contended upon the trial, nor is it now contended, but that death by drowning is a death produced by external and violent means. Such-Is the law. (Tucker v. Mutual Benefit Life Co., 23 N. Y. St. Repr. 957; Winspear v. The Accident Ins. Co., L. R. [6 Q. B. Div.] 42.) By the concession of counsel for 'the appellant, made upon the trial, the issue became narrowed to the single question of whether the death was occasioned solely by accidental means; that is to say, were the jury authorized upon the evidence to say that death was caused solely by accident.-

This case, like many others which have preceded it, is. destitute of' direct proof of the happening of any' accident to the deceased which resulted in the drowning. It appeared that he was about fifty-three years of age and lived with his wife at 94 Decatur street, Brooklyn. He was in the agency collecting business, and had an -office in the city of New York. On the morning of October 21, 1897, he left home to go to his business as usual and was then in good-spirits. A little after two o’clock of the same day he was at his office in the Potter Building, and Mr. H. M. Close, who had an office in the same place, conversed with him. Deceased asked Mr. Close if he wished to go to Staten Island with him. Close asked if lie was going on business or pleasure, and deceased replied that lie was first going to see “ Gus Peters ” and then going to Staten Island to make some calls — some collections. Mr. Close declined to go, and immediately left the office, deceased remaining. So far as gathered from the record no one saw the deceased' alive after that time. On the twenty-ninth day of October following his body was found floating in the water in New York bay ■opposite Maple avenue, Clifton, Sta'ten Island. When removed from the bay water flowed from the mouth and nose in quite •a ■ free stream. The physician who examined the body on its removal from the water found no marks of violence on it; he found a frothy mucus issuing from the mouth, of a character which •excluded the idea of the presence of ejnlepsy, and was such as is found in a case where a person has been immersed in “water and struggling, getting the water into the lungs.” The body was ■clothed and indicated that it had been in the water from seven to ten days. In the pockets were found two gold watches, a masonic badge and some other trinkets. It is upon this testimony that the court submitted as a question for the jury to find whether or not the drowning was the result of accident.

It is easily seen that the question was narrow and the evidence meagre. But we are convinced that the affirmative answer which was returned is not without evidence and authority to sustain it. The deceased left home in good spirits; he was afterwards' at his office engaged about his business; he declared that it was his purpose to go to Staten Island and invited his office associate to accompany him. His body was found near the shore of Staten Island, showing unmistakably that life was lost by drowning and indicating a struggle while in the water. Arising out of these facts are two presumptions; one that he did not commit suicide (Mallory v. The Traveler s’ Ins. Co., 47 N. Y. 52), the other that' his death was not caused by the intentional act of -another person. (Peck v. Equitable Accident Assn., 52 Hun, 255.) These presumptions are of fact, and until overthrown by proof, stand as facts established. (Trave lers’ Ins. Co. v. McConkey, 127 U. S. 661.) The declaration of the deceased that he intended going to Staten Island, and the finding of the body near its .'shores, indicate with sufficient certainty that death ensued while he was carrying out his declared intention. In this respect the evidence from which to find that death was accidental is quite as strong and convincing as were the facts appearing in Mallory v. The Travelers’ Ins. Co. (supra); Pech v. Equitable Accident Assn, (supra); Travellers’ Ins. Co. v. McConkey (supra); De Van v. Com. Travelers’ Accident Assn. (92 Hun, 256; affd. on appeal, 157 N. Y. 690); Washburn v. The National Accident Society (32 N. Y. St. Repr. 34). Tile declaration of intention and the finding of the body furnish the equivalent of circumstances appearing-in these cases showing that the deceased, when last seen, was walking towards the place near which the body was found. In the Wash-burn case there were no circumstances shown except the finding of the body, the revolver, some money and trinkets. There was no-evidence of any struggle, and his only declaration when last seen was that he was going away. It is said that the declaration of the deceased in the present case as to his intention to go to Staten Island was improperly received, and should have been excluded upon the objection which was made. We think otherwise. The declaration is a circumstance, the same as any other act would have been; it tended to explain and account for the presence of the body at the point where it was found, and to show that its being in that locality was consistent with a normal act; its tendency was to show that the ensuing death was accidental" in occurrence, as it' authorized the inference that he acted from a fixed purpose in a natural manner ■ and as his usual business called him to act. The rule as to declarations in the absence of parties lias obviously no application to such a case. Upon the main question, therefore, the court was correct in submitting the case to the jury, and their finding is sufficiently supported by the evidence to be controlling upon us.

Nothing which appears in Whitlatch v. Fidelity & Casualty Co. (149 N. Y. 45) is in-conflict with this result. The point in that case arose upon the charge, which was that the burden of proof was upon the defendant to show by a fair preponderance of evidence that the deceased took his. life with suicidal intent. The court held the charge error, and laid down the rule that the burden of proof to show that the death was accidentia! was upon the plaintiff. It Avas also held upon the facts in that case that such question was for the jury, and it was so recognized by the Court of Appeals and by this court. (Whitlatch v. Fidelity & Casualty Co., 21 App. Div. 124.) The court in its charge in the present case recognized the rule as established by the Court of Appeals, and in a clear, full charge laid before the jury the correct rules of law which were to govern them in their consideration of the case. There Avas not a request to charge which was subsequently made .by either party which tended to the enlightenment of the jury beyond that which they had already received ; and the court would have been abundantly justified if it had refused to charge further. 'It is clear that in what was thereafter said by the court the defendant was not prejudiced.

The judgment should, therefore, be affirmed.

All concurred.

Judgment and order affirmed, with costs.  