
    Adolph Goldschmidt and Others, Respondents, v. The Mutual Life Insurance Company of New York, Appellant.
    First Department,
    November 12, 1909.
    Evidence — action on insurance policy — defense of suicide — burden of proof — res gestae.
    Where a policy of life insurance by its terms is void if the insured committed suicide, the burden of establishing that defense is upon the insurer.
    In order to establish the defense of intentional suicide the insurer is entitled to prove as part of the res gestm showing motive that immediately prior to hia death the insured was in financial trouble; that the plaintiffs, his creditors, holding the policies by assignment as security, had at his request made an examination of ins books and advised him to make a settlement, and that they had an appointment to meet him for a further consultation on the morning that he died.
    Such evidence, sought to be elicited from the plaintiff holding the policy by assignment from the insured, is not inadmissible under section 829 of the Code of Civil Procedure, for it is against interest.
    Appeal by the defendant, The Mutual Life Insurance Company of Rew York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of. Rew York on the 8tli day of February, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      James McKeen, for the appellant.
    
      William G. Wilson of counsel [ Wilson & Wallis, attorneys], for the respondents.
   Clarke, J.:

This was an action brought on the 29th of May, 1877, by the plaintiffs as assignees of two policies of insurance issued by the defendant upon the life of one Oscar Edler who died on the 27th of August, 1876. The first policy provided by its terms that it should be null and void if the insured should die by his own act or hand, whether sane or insane, and that in such case the company would return the premiums paid. The second policy provided that the self-destruction of the person, whether voluntary or involuntary, and whether he he sane or insane at the time, was not a risk assumed by the company in this contract, but in every such case the company would upon demand pay the net reserve upon it held by the company at the beginning of the year in which the death occurred, calculated by the present legal standard of the State of Mew York.

The defense interposed was that the decedent did commit suicide and defendant offered to pay under the first policy the amount of the premiums paid thereon, and under the second the legal reserve provided therein. Upon the first trial, at the close of the plaintiffs’ case, a verdict was directed for the plaintiffs for the sum so admitted by defendant to be due. This was reversed (102 N. Y. 486) upon the grounds of the improper admission in evidence of the record of the coroner’s inquest and that the burden of proof was upon the defendant to show that Edler had committed suicide and not as erroneously held at the trial upon the plaintiffs of showing that he did not die by his own hand. Upon the second trial judgment was rendered in favor of the plaintiffs for the amount conceded to be due upon a verdict directed by the court. This judgment was reversed (35 N. Y. St. Repr. 121) upon the ground that the case should have been submitted to the jury.

It is the law of the case, therefore, that the burden of establishing the defense, viz., that Edler did commit - suicide, is upon the defendant, and that upon the testimony submitted this was a question of fact to be determined by the jury. Upon the third trial some new and additional evidence was introduced on behalf of the defendant, but the issue was still one of fact requiring submission to the jury and it was so submitted. The jury returned a verdict for the plaintiffs for the full amount claimed.

We do not consider whether that verdict was sustained by the weight of the evidence or not, because we find in the record that certain competent evidence was excluded, such exclusion constituting error which in our opinion is fatal to the maintenance of this judgment.

Oscar Edler, the decedent, was thirty-two years of age at the time of his death, and unmarried. He was a retail dealer in gloves, etc., having a store on Broadway in the city of Mew York, and occupying a small room in a lodging house on West Fifty-second street.

Daniel Goldschmidt, one of the, plaintiffs, testified that he was a member of the firm of Goldschmidt, Bachrach & Co., and that Mr. Edler was a debtor of his firm at the time these policies were taken out; that he held four other policies in two different companies on his life at the same time. There were three companies altogether, $5,000 in each. “ Mr. Edler at the time of making these two assignments of these two Mutual Life policies to my firm owed my firm money. * * * His total indebtedness to my firm at the time of these assignments was in the neighborhood of $20,000. * * * The insurance was taken out at the suggestion of myself or a member of my firm. We wished to have some security for the indebtedness. * * * That was an indebtedness that was floating and Mr. Edler received merchandise from us and paid us; and he never owed us less than that. I felt that I needed some security. I did not understand at that time that Mr. Edler was pressed for money to pay his bills.”

The testimony of David Bachrach, one of the plaintiffs, since deceased, given upon a former trial was read for the defendant. Mr. Bachrach testified: “ Oscar Edler in his lifetime was an intimate friend of mine. A warm friend. He died in 1876. * * * Our relations had been intimate with one another socially and latterly in business also they were. I knew the condition of his affairs shortly before his death.”

He was then asked : “ How did you learn it % ” This question was objected to, the objection was sustained and the evidence excluded. The evidence so excluded was the following: “We had an appointment with him that Thursday night, because he told us he was in trouble and my. partner and myself went on Thursday night by appointment to meet him at his store 1163 Broadway, I think. When we came there he laid his whole situation before us and we told him there was nothing else left to him than to make a settlement with his creditors and that we would be willing to help him to make that settlement; and in order to know exactly what he had and what he didn’t have, we made an appointment with him to meet him on Sunday morning in the store to take up the stock and see what he could offer to his creditors. On Saturday afternoon I wrote him a note.” Then this evidence was admitted: “Q. You stated that you had knowledge of Mr. Edler’s affairs, did you not? A. Yes. * * * I had access to his books. I used that access thoroughly to ascertain his condition at that time.” He then testified that on Sunday morning, which was the morning Edler was found dead, he went to Edler’s house with his partner.

, This excluded testimony tended to show that immediately prior to Edler’s death he was in financial trouble; that the plaintiffs, who were creditors of his and to whom he had assigned the policies of insurance in suit as security, upon his request made an examination of his boobs and advised him that there was nothing else for him to do but to make a settlement and that they had an appointment to meet him to further consult about the matter on the very morning upon which he died.

The issue tendered being intentional suicide, the facts and circumstances which tended to show the financial, mental and physical condition of the decedent immediately prior to the time of the death were relevant as part of the res gestae.

The evidence was not objectionable under section 829 of the Code of Civil Procedure, for it was not evidence given by a witness in his own behalf or interest against the executor, administrator or survivor of a deceased person, or a person deriving his title or interest from, through or under a deceased person, by assignment or otherwise ; but was given by one of the plaintiffs against himself. We find, therefore, no ground for its exclusion. An examination of the cases will show that evidence of the physical, mental and financial condition of the decedent shortly prior to his death, when suicide is claimed, has been commonly received, hi Mutual Life Ins. Co. v. Hillmon (145 U. S. 285) it was said: “ A man’s state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or words spoken or written. The nature of the fact to be proved is the same, and evidence of its proper tokens is equally competent to prove it whether expressed by aspect or conduct, by voice or pen. * * * Whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party.” In Ritter v. Mutual Life Ins. Co. (169 U. S. 139) the financial condition of the decedent and his letters and declarations, oral and written, were admitted upon the issue of suicide. “ The testimony was competent and material as tending to show the mental condition of Kerr and what were his expectations and apprehensions at and just preceding his death.” (Kerr v. Modern Woodmen of America, 117 Fed. Rep. 593.)

In Landon v. Preferred Accident Ins. Co. (43 App. Div. 487; affd., 167 N. Y. 577) testimony as to a conversation between the deceased and a witness having been admitted, the court said: “ It is said that the declaration of the deceased * * * 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 has obviously no application to such a case.”

In Pagett v. Connecticut Mutual Life Ins. Co. (55 App. Div. 628), in reversing a judgment on a verdict for the plaintiffs, the court said: There is proof of despondency. He was out of permanent employment, was in debt and had family troubles. . His declarations are shown indicating an intent upon his part to commit suicide.” It is always proper to prove the intention as a fact distinct from the actual death and distinct from and preceding the perpetration of the act which causes the death. Any act or declaration made while this intention exists, and. proceeding from it, whether expressly declaring the intention or otherwise, naturally tending to prove its existence, is necessarily of the res gestae as to the intent, and the intent is the main fact. As such it tends directly to prove the intention to commit suicide which is often if not always a necessary part of the proof of the act itself.” (Rogers v. Manhattan Life Ins. Co., 138 Cal. 285.)

If the evidence excluded had been admitted, facts would have been before the jury from which it would have been competent for them to find a motive. This, in connection with the physical facts attending the death, to wit, the orderly appearance of the room, the body of Edler clothed in night clothes lying quietly in his own bed, the strong smell of bitter almonds, the distinguishing characteristic of cyannideof potassium or prussic acid, the empty phial on the floor by the bedside emitting the same odor, the powerful smell of the same character found a few hours later when the body was opened at the autopsy and proceeding from it, might have procured a verdict for the defendant.

As the exclusion of the evidence was error, the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, Laitghlin and Houghton, JJ., concurred.

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