
    WHITLATCH v. FIDELITY & CASUALTY CO. OF NEW YORK
    (Supreme Court, General Term, Second Department.
    May 14, 1894.)
    Insubance—Action on Policy—Suicide.
    In an action on an accident policy, a defense that the insured committed suicide must he established by a preponderance of the proof.
    Appeal from circuit court, Kings county.
    Action by Josephine Whitlatch against the Fidelity & Casualty Company of New York on an accident insurance policy. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Charles C. Nadal (Thomas S. Moore, of counsel), for appellant.
    Thomas Darlington (John L. Hill, of counsel), for respondent.
   PRATT, J.

The cause has been twice tried, and is reported in 71 Hun, 146, 24 N. Y. Supp. 537. The rule was then laid down that, upon the pleadings, the burden of proving death by suicide rested upon the defendant. Upon the trial now under consideration, the circuit judge applied the rule, as given him by the general term, and the result was in favor of the plaintiff. Upon the facts there was but one question for the jury; that was whether the death of Whitlatch was the result of accident or suicide. No one was present when the pistol was discharged. Each party tried to produce evidence that would shed light upon the condition of Whitlatch’s mind before his death. Neither party claimed him to have been insane. We think it can be safely said that nothing was shown that would justify a jury in finding a verdict thát the deceased intended! to commit suicide. The court charged that, to find a verdict for defendant, the jury must be satisfied, by a preponderance of proof, that Whitlatch intentionally took his own life. We think that was; a correct statement of the law. The common experience of mankind teaches that suicide is not an ordinary mode of death. The natural instinct of self-preservation is opposed to it. It is also a breach of the criminal law. No jury should be allowed to find one guilty of such a violation of law—of such a perversion of the ordinary rules of human action—except upon a preponderance of proof. We think the circuit judge correctly stated the rules of law, and that the requests to charge proposed by defendant, if granted, would have been more liable to mislead the jury than to guide them aright, and were properly refused. Judgment affirmed, with costs. All concur.  