On appeal from the Supreme Court.
For the appellant, Starr, Summerill & Lloyd (Alfred E. Driscoll, of counsel).
For the respondent, Joseph T. Sherman (Harry Grossman, of counsel).
The opinion of the court was delivered by
PARKER, J. The suit is on an ordinary life policy with additional death benefit in case of death by accident. The primary claim was paid, but the payment of accident benefit refused, the Company claiming that the death was by suicide. That issue went to the jury, whose verdict for the plaintiff beneficiary may fairly be regarded as a finding that suicide was not proved. The present appeal is based on two alleged trial errors. The first is that the court refused to direct a verdict for the defendant; the second, that the court refused the following request to charge: "In view of the fact that
there is evidence that the death of Walter Aydelotte [the insured] resulted from self destruction, there is no presumption against the fact of his suicide."
By the terms of the policy the additional death benefit was payable on "due proof of the death of the insured, as the result, directly and independently of all other causes, of bodily injuries sustained through external, violent and accidental means, provided * * * (5) that death shall not have been the result of self destruction, whether sane or insane. * * *"
The deceased was in a motor car where the road crosses the double track of a railroad line. No one was with him in the car. According to the testimony of one witness, deceased had stopped his car about twenty-five feet short of the tracks, alighted, raised the hood of the car, and when the witness saw him the hood was up and the man was wiping his hands with some cotton waste. Asked whether he needed help, he replied in the negative. Another witness for plaintiff, called in rebuttal, said she saw him "having trouble with his car * * * the front wheels were distinctly off the east [further] side of the tracks" as the train hit his car. He was killed by the collision of a train with the standing car.
The defendant-appellant in its answer set up the proviso in the policy about self-destruction (which with the omissions indicated, we reproduce from the answer) and averred that the death was the result of self-destruction. This was the determinative issue at the trial. The court, in charging the jury, instructed them that the plaintiff had the burden of proving not only the violent death, but also that death was not the result of self-destruction. The question whether this instruction was correct is not specifically before us, which is just as well, for the policy, though of course in evidence, is not printed, and the excerpt embodied in the answer shows by asterisks that it is far from complete. We do not wish to be understood as subscribing to the view that where the policy contract calls for liability under prescribed conditions, and also contains a proviso negativing liability under certain other conditions, the burden is on the insured or the beneficiary to prove that the proviso does not apply. The cases seem to hold, generally, that the burden of proving suicide
is on the insurer. 37 C.J. 618; Kresse v. Metropolitan, &c., Co., 111 N.J.L. 474. (Contra, New York Life Insurance Co. v. Gamer, 303 U.S. 161.)
Taking up the defense of suicide: It was in evidence that deceased was estranged from his wife, who lived in another state; that he had been living with another woman, but that they had separated; and the principal piece of evidence for the Company on the issue of suicide was a note or letter in the handwriting of deceased, some three pages long, written apparently at two different times. This was found in, or with the wallet of deceased at the place of, and immediately after, the accident. Like the policy, it is not printed as an exhibit, though so marked, but was read to the jury. While it does not say in plain language that he intended to commit suicide, it does ask that his body be cremated, and the thought of suicide is clear enough, though as to time and method there is not a word or even a hint. Based on this note, and on the circumstances of the accident, together with some testimony touching the illicit relations of deceased with the woman to whom the note was apparently addressed, counsel for defendant company moved for a direction of a verdict for defendant on the ground that as a court question the presumption against suicide had been nullified and a case of suicide had been established incontrovertibly by the evidence. The motion was denied, and the argument here is (quoting the language of the brief) that "It may be conceded that there is a legal presumption against suicide and that this presumption, coupled with other proofs which may be submitted, make out a prima facie case in a suit of this kind. While this is true, it is nevertheless a clearly established law in this forum that a presumption is not evidence and that the aid of a presumption may be invoked ...