Schelberger v. Eastern Sav. Bank

• Decision Date: 14 April 1983
• Citation: Schelberger v. Eastern Sav. Bank, 461 N.Y.S.2d 785, 93 A.D.2d 188 (N.Y. App. Div. 1983)
• Parties: Gail SCHELBERGER, Plaintiff-Respondent, v. EASTERN SAVINGS BANK, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 785

461 N.Y.S.2d 785

93 A.D.2d 188

Gail SCHELBERGER, Plaintiff-Respondent, v.EASTERN SAVINGS BANK, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 14, 1983.

William E. Kelly, New York City, of counsel(Manuel H. Quintana and Gianni Donati, New York City, with him on the brief; Lane & Mittendorf, New York City, attorneys), for defendant-appellant.

Bernard Meyerson, New York City, of counsel(Edward P. Dean, Bronx, with him on the brief; William J. Fitzgerald, Bronx, attorney), for plaintiff-respondent.

Before KUPFERMAN, J.P., and CARRO, SILVERMAN, FEIN and KASSAL, JJ.

KASSAL, Justice.

Defendant appeals from a judgment entered after a jury trial awarding plaintiff the sum of $30,000 as the proceeds of a life insurance policy issued upon the life of decedent, Edward Schelberger.The policy, issued May 1, 1978, contained a standard clause pursuant to Insurance Law § 155, which excluded coverage upon the death of the insured as a result of suicide within two years from the date of issuance of the policy.

The undisputed proof disclosed that the insured died on December 25, 1979, 1 year and 7 months after issuance of the policy, as the result of an overdose of a barbiturate, Tuinal.The insurer refused to honor the claim and defended the action in reliance upon its assertion as an affirmative defense, that the insured had committed suicide and, accordingly, there was no coverage under the policy.The jury, after full and adequate instruction on the applicable law, consistent with the Pattern Jury instructions, found in favor of plaintiff, concluding that the insurer did not sustain its burden of proof on its affirmative defense.

We disagree with our dissenting colleagues, who, in resolving the issues before us on this appeal, would depart from established law in this state dealing with the application of the presumption against suicide in actions to recover the face amount of a life insurance policy.The dissent, in suggesting that a verdict should have been directed in favor of the insurer since "[t]here was no evidence that the death was accidental", misperceives the underlying nature and strength of the presumption and improperly shifts the burden of proof on the defense of suicide to the beneficiary which, under applicable law, must be established by the insurer, by clear and convincing evidence.On this record, we also find that the summation by plaintiff's attorney does not constitute reversible error so as to warrant a reversal and remand for a new trial.

In finding that the weight of the evidence does not support the verdict, the dissent ignores the leading authorities in this state, in the Court of Appeals, in this and in other Departments, all of which have uniformly held that the sufficiency of the proof adduced by an insurer bearing upon its defense of suicide in opposing an action to recover the face amount of a life insurance policy, poses a factual issue for the jury.Although the cases have sustained a directed verdict in favor of the beneficiary upon a finding that the proof offered by the insurer was insufficient to overcome the presumption against suicide, absent supporting proof of an eyewitness or an unequivocal suicide note, we have not been cited to any case holding the presumption to have been overcome so as to remove the issue from the jury's consideration.^*Overlooked by the dissent is that it is for the jury to assess the evidence in relation to the presumption against suicide.The proof adduced here was found by the triers of the fact to be insufficient to rebut the presumption.We find no reason to interfere with that factual determination.

PRESUMPTION AGAINST SUICIDE

The presumption against suicide, one of the strongest presumptions in the law, has been held to require a jury to find accident where the evidence is evenly balanced, both in cases to recover the face amount on a life insurance policy, where the beneficiary has relatively no burden to sustain, and in cases where recovery is sought for double indemnity benefits or under an accident insurance policy, where the ultimate burden of proof is on the beneficiary (Wellisch v. John Hancock Mut. Life Ins. Co., 293 N.Y. 178, 56 N.E.2d 540;Begley v. Prudential Ins. Co. of America, 1 N.Y.2d 530, 154 N.Y.S.2d 866, 136 N.E.2d 839).

Wellisch, an action brought on a life insurance policy, is a case which closely parallels the facts here.The insurer defended upon the ground of suicide within two years from the issuance of the policy.There, the insured was found in a comatose condition in his automobile, which had left a dry roadway and crashed into a tree.The weather was clear.Uncontroverted expert testimony established that the death resulted from barbiturate poisoning from a drug known as seconal, the Court concluding that a large dose of seconal had been taken, evidenced by the detection of a small amount in the organs after death (293 N.Y. at 181, 56 N.E.2d 540).On the day of the occurrence, the insured apparently had in his possession 30 to 32 capsules.Prior to the time he was found, he had come home from work complaining of a headache and was in a nervous and irritable mood.After striking one of his children, a fight broke out, whereupon the aunt of the insured's wife summoned the police.The wife stated that her husband had been having trouble and she wanted him arrested, since she was about to obtain a judgment in an action for a separation.Decedent allegedly told the officers "Well, you won't come back, she won't be bothered with me any more."(293 N.Y. at 182, 56 N.E.2d 540.)After gathering his fishing equipment, Wellisch got into his car and drove away.His body was found later by State Troopers and next to him, written on a scrap of paper in his handwriting and signed with his name, was the following: "All life is only one dark hour.M.W.The best thing in this hapless strife is the end of life."(293 N.Y. at 183, 56 N.E.2d 540.)

In sustaining the verdict for the plaintiff, the Court found a factual question presented as to whether the insured had taken the capsules by mistake or with the intention of killing himself.The handwritten note beside the assured's body was found not to constitute an unequivocal threat of self-destruction, in part based upon testimony of the wife that her husband was in the habit of writing "what she called poetry".Insofar as concerns the presumption, the Court of Appeals held that it does not shift the burden of proof or disappear from the case when evidence to the contrary is offered, but rather, the presumption against self-destruction remains in the case and is to be considered by the jury in assessing the evidence:

"The 'presumption against suicide' means that when death by violence is shown and an inference must be drawn by the jury as to suicide or not, then the jury should in justice and good conscience draw the inference of accident, not suicide.* * * Of course, that does not mean that there should be a finding against suicide when the circumstances are wholly inconsistent with a finding of accident and there is no reasonable hypothesis available except that of suicide....It means only that a fair question of fact as to accident or suicide should be answered: 'accident'."(293 N.Y. at 184-185, 56 N.E.2d 540.)

In actions to recover the face amount of a life insurance policy, reliance upon the presumption against suicide, along with proof of death and issuance of the policy, establish plaintiff's prima facie case (Wellisch v. John Hancock Mut. Life Ins. Co., supra;Bolger v. Prudential Ins. Co., 250 App.Div. 122, 293 N.Y.S. 554;Weidy v. Prudential Ins. Co., 256 App.Div. 778, 11 N.Y.S.2d 722;Weil v. Globe Indemnity Co., 179 App.Div. 166, 166 N.Y.S. 225).

Application of the presumption shifts the burden of going forward to the insurer to establish suicide as a defense by "clearly establishing such facts as will exclude any reasonable hypothesis of accidental death."(Vance on Insuranceat 571.)When proof to the contrary is shown by the insurer, however, the presumption does not vanish from the case, but remains and is to be considered by the jury in evaluating all the evidence (Wellisch v. John Hancock Mut. Life Ins. Co., supra;Begley v. Prudential Ins. Co. of America, supra ).

We do not disagree with the observation by our dissenting colleagues that the presumption against suicide does not take the place of evidence.They overlook, however, that it is more than evidence.It exists as "a rule or guide for the jury in coming to a conclusion on the evidence."(Wellisch v. John Hancock Mut. Life Ins. Co., supra, 293 N.Y. at 184, 56 N.E.2d 540).The presumption arises in recognition of the fact that self-destruction "is contrary to the general conduct of mankind"(Mallory v. Travelers' Ins. Co., 47 N.Y. 52, 55).It is a judicial recognition authorizing a jury "to take heed of the truth drawn from general human experience, that death by suicide is an improbability, that most men cling to life."(Wellisch v. John Hancock Mut. Life Ins. Co., supra, 293 N.Y. at 184, 56 N.E.2d 540.)

The strength of the presumption is further reflected in Begley, supra(1 N.Y.2d 530, 154 N.Y.S.2d 866, 136 N.E.2d 839), an action brought to recover the double indemnity [accidental death] benefit on a life insurance policy.In such a case, the beneficiary must establish death of the insured as resulting from accident, within the coverage of the policy and not directly or indirectly from any other cause.Unlike a life insurance case, the ultimate burden of proof is upon plaintiff beneficiary to establish accidental death.Nevertheless, the Court of Appeals in Begley held that, even with respect to accident coverage, where the evidence is evenly balanced, the jury must find accident as opposed to suicide, albeit in such case where the evidence is balanced, it may be said that the plaintiff has not sustained his ultimate burden.The rationale of the...