293 N.Y. 178 | NY | 1944
Plaintiff Tillie Wellisch is the widow, and the other two plaintiffs are the surviving children, of Morris Wellisch. The suit is brought to recover benefits promised to them in a life insurance policy on the life of Morris Wellisch, issued by defendant insurance company, of which company the insured was an employee during his life. The answer asserts that the insured died by suicide and points to a policy provision which says, "if the insured shall die within two years from the date of issue of this policy by self-destruction while sane or insane, the amount payable herein shall be limited to the premiums paid hereon." The insured died within two years from the issuance of that policy and the company has tendered to plaintiffs an amount equal to the premiums paid on the policy during the life of the insured. At the end of the trial defendant moved for a directed verdict in its favor on the ground that it had produced "sufficient evidence to overcome a presumption against suicide". The motion was denied and the jury found for plaintiffs. The Appellate Division affirmed the judgment, *181
declaring: "there was a clear-cut issue of fact which the jury decided in plaintiff's favor and we cannot say upon this record that the verdict was against the weight of the evidence". (
On the afternoon of May 11, 1942, the insured was found in a comatose condition sitting in his automobile which had left the highway and crashed into a tree. The road was dry and the weather clear. He was taken to a hospital and died a few days later. Medical experts ascribed his death to barbitrate poisoning, drawing that conclusion from the discovery in his body after his death of a drug known as seconal, and from other indications. Seconal is one of the group of drugs known as barbitrates. When taken in small doses it has an anaesthetic or sedative effect. In larger doses it brings on unconsciousness which sometimes terminates in death. It is prescribed and administered by physicians. The actual quantity of seconal found in the body of insured was less than a grain but the proof shows that the drug is largely absorbed or assimilated by the body or excreted therefrom. Detection of the small amount of seconal in the organs, after the death of insured, was said to be an indication that a large quantity had been taken. There was, however, no definite proof in the record as to just how large that quantity was. One of the experts said that the maximum dose which could be taken without fatal effect was from 10 to 50 grains. The insured suffered from headaches and, according to some of the witnesses, had been in the habit of taking seconal capsules to relieve his suffering. These he customarily borrowed from an aunt of his wife who lived with the insured and his family. The aunt herself took seconal capsules for some purpose and had a doctor's prescription for them. Earlier on the day on which the insured was found in his car, he had gotten six or eight capsules from the aunt and had told her that he would have her prescription filled at a nearby pharmacy. The pharmacist testified that the prescription was refilled at the request of the insured and that the insured took away with him *182 the new box containing twenty-four capsules. The wife of the insured said that her arrangement with her husband was that the new box was to be left at the pharmacy and that she was to call for it later but that she never did call for it because she was notified of her husband's illness before she could go to the pharmacy.
Defendant insists that this evidence as to the seconal capsules, plus the other proof which we are about to describe, conclusively proved suicide. The insured, who was a solicitor of life insurance business and a collector of premiums for defendant, came home about noon, as was his custom, on May 11, 1942. He complained of a headache, was in a nervous and irritable mood and did not finish his noonday meal. Later he became annoyed by some activities of his children and slapped one of the children with the result that the child fell, broke a glass which he was carrying, and was cut. Some commotion followed and the aunt of the insured's wife thought it appropriate to call the police, which she did. The wife testified that when the police arrived they were told by the insured that it had been a mistake to call them and that the whole difficulty had been ironed out. One of the police officers testified that Mrs. Wellisch told the police that she and her husband had been having trouble, that she wanted her husband arrested and that she was going to get judgment in an action for separation which, according to the police, she stated she then had pending. The police officers admonished the couple not to call the police again but to take their troubles to court, whereupon, according to the officer, the insured said: "Well, you won't come back, she won't be bothered with me any more". This remark is pointed to by defendant as a statement of Wellisch's intent to kill himself. Before that incident insured had announced to his family that he was going on a fishing trip that day but they, according to Mrs. Wellisch, had dissuaded him from it, because of his headache. After the police had left, again according to Mrs. Wellisch, she and her aunt told the husband that since he was so upset it would be well if he would go out for awhile. Mrs. Wellisch testified that her husband then got together his fishing equipment, fishing clothes, lunch and a jug of water and that she helped her husband put those things into his car. He drove away, ostensibly *183 on his way to his favorite fishing spot. It is said that the road he took and on which he was later found was on the route to that fishing place. In his car the State Troopers found written on a scrap of paper in the handwriting of insured and signed with his name, the following: "All life is only one dark hour. M.W. The best thing in this hapless strife is the end of life." Appellant insists on calling this the "suicide note" but surely it is not an unequivocal threat of self destruction. The wife swore that her husband had been in the habit of writing what she called poetry, and that she at times had typed and preserved for him some of his writings. There is proof that insured was at times an irritable and quarrelsome person but there is other evidence that he was fond of his family, had various hobbies, stood high in the estimation of his employer and that his earnings for a period shortly before his death were higher than he ever before had enjoyed. A few days before he left home on his last journey his wife at his request had written letters of inquiry to several vacation resorts asking whether cabins with fishing and swimming facilities were available for insured and his two small sons. His vacation was due to begin on July 2nd and the wife testified that he had discussed with her his plans for a vacation trip, apparently including her in those plans.
The Trial Justice charged the jury that plaintiffs were "entitled to recover on due proof of the death of the deceased, unless you find from the evidence that defendant has established to your satisfaction by a fair preponderance of the evidence that Morris Wellisch committed suicide or self destruction." He called to the jury's attention that there is a presumption against suicide but told them that the presumption might be overcome "not only by verbal testimony but by reasonable deductions from the facts as you find them to be established." Before they might find a verdict in favor of defendant, said the Justice, they "must be satisfied that deceased came to his death by self destruction or suicide, and that regardless whether he was sane or insane." Finally he told them that, since this was an action on a life insurance policy and not on an accident insurance policy (seeOstrander v. Travelers Ins. Co.,
It was conclusively shown that Morris Wellisch died from an overdose of seconal but a question was presented as to whether he took the extra capsules by mistake or with the intention of killing himself. All the proof was circumstantial. There was no forthright threat of suicide. The man's statement to the police and his scribbled thoughts on life and death were no more than equivocal. There was an innocent reason for the possession and use of the drug, in some quantity. Reasonable men, we think, might reasonably come to one or the other answer to the question of fact sent to the jury by the Trial Justice. The Appellate Division was unanimous in its view that the evidence not only permitted a negative answer to the question as to suicide, but that such an answer was not against the weight of evidence. We are forbidden in such cases to reweigh the opposing proofs.
We add a comment on the "presumption against suicide" about which much is said in these briefs. That presumption is not one of those that takes the place of evidence so as to create a question of fact even when all the real proof is the other way. (N.Y. Life Ins. Co. v. Gamer,
Defendant's motion to dismiss on the ground that plaintiffs had failed to comply with the policy provision requiring that due proof of death be furnished to the company "on the company's prescribed forms", was properly denied.
The judgment should be affirmed, with costs.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, CONWAY and THACHER, JJ., concur.
Judgment affirmed. *186