
    (71 Hun, 146.)
    WHITLATCH v. FIDELITY & CASUALTY CO. OF NEW YORK.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Insurance—Action on Policy—Suicide.
    In an action on an accident policy, for the death of plaintiff’s husband, where the defense is that deceased committed suicide, the burden of establishing such defense is on defendant.
    Appeal from circuit court, Kings county.
    . Action by Josephine Whitlatch against the Fidelity & Casualty Company of New York on a policy of accident insurance. From a judgment for plaintiff for part of her claim, and from an order denying a new trial, she appeals.
    Reversed.
    Argued before BÁRNARD, P. J., and DYKMAN and PRATT, JJ.
    Thomas Darlington, (John L. Hill, of counsel,) for appellant.
    Charles C. Nadal, (Thomas S. Moore, of counsel,) for respondent.
    
      In an action on a policy of insurance, the burden of showing that deceased died by his own hand is on defendant. Lamb v. Railroad Co., 46 N. Y. 279; Caldwell v. Steamboat Co., 47 N. Y. 282; Seybolt v. Railroad, 95 N. Y. 562; Insurance Co. v. McConkey, 127 U. S. 667, 8 Sup. Ct. Rep. 1360; Williams v. Association, 133 N. Y. 366, 31 N. E. Rep. 222; Murray v. Insurance Co., 85 N. Y. 236; Goldschmidt v. Insurance Co., 102 N. Y. 486, 7 N. E. Rep. 408; Slocovich v. Insurance Co., 108 N. Y. 66, 14 N. E. Rep. 802.
   PRATT, J.

The appeal brings up the question whether the verdict is so against the weight of evidence that it should be set aside, and also whether there were errors committed in the charge to the jury requiring a reversal. The deceased was found dead, with a discharged pistol by his side, and the defense may fairly •claim it to be established that death was caused by the ball discharged from that pistol. But we do not succeed in finding proof that deceased voluntarily discharged the pistol; much less, that he •did so with intent to take his life. While the position of the wound does not preclude the possibility of the weapon having been held in the hand of deceased, it at least renders it improbable; and the letters written that evening do not disclose any expectation of death, but the contrary. Mr. Whitlatch is shown to have been singularly free from the weaknesses that lead to suicide. But we do not need to decide the question whether the verdict should be set aside, as contrary to the weight of evidence, for the reason that errors were " committed in the charge that require a new trial. The court properly refused a nonsuit, thereby ruling that plaintiff had made a prima facie case. The only affirmative defense open to defendant, under the pleadings, is found in the averment that deceased intentionally inflicted the injuries. Being an affirmative defense, unless proved, plaintiff was entitled to recover. The burden of proof to establish intentional injury rested upon the defendant. If the proof failed to show whether or not the injuries were intentional, the defense was not made out. Plaintiff was not required to prove a negative. Insurance Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. Rep. 1360. The cases of negligence referred to are not in point, for in this state it is held that freedom of plaintiff from negligence is the foundation of his case, and must be affirmatively proved. Were it the law that plaintiff must allege and prove that death did mot result from suicide, a demurrer might have been successfully interposed, as no such allegation is found in the complaint. The court declined to charge in accordance with these views, and the exception thereto must be sustained. The court also charged that if the injury resulting in death was caused by intoxication the plaintiff could not recover. Ho such defense was pleaded, nor was any proof interposed which warranted the charge. For these errors a new trial should be had, with costs to plaintiff, to abide the event. All concur.  