Whitlatch v. Fid. & Cas. Co. of New York

• Decision Date: 07 April 1896
• Citation: 43 N.E. 405,149 N.Y. 45
• Parties: WHITLATCH v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

149 N.Y. 45

43 N.E. 405

WHITLATCH

v.FIDELITY & CASUALTY CO. OF NEW YORK.

Court of Appeals of New York.

April 7, 1896.

Appeal from supreme court, general term, Second department.

Action by Josephine Whitlatch against the Fidelity & Casualty Company of New York. From a judgment of the general term (28 N. Y. Supp. 951) affirming a judgment for plaintiff, defendant appeals. Reversed.

Thomas S. Moore, for appellant.

Thomas Darlington, for respondent.

BARTLETT, J.

The plaintiff sued to recover upon a policy on the life of her late husband, James W. Whitlatch, issued by the defendant, the death loss being payable to her. The material conditions of the policy are as follows, viz: The deceased was insured ‘in the sum of ten thousand dollars against death resulting from bodily injuries * * * through external, violent, and accidental means, which shall, independently of all causes, result in death within ninety days from the happening thereof.’ The exceptions limiting this liability were ‘that, in case of death resulting from injuries wantonly inflicted by the insured, or inflicted or caused by him while insane, the measure of this company's liability shall be the sum of one hundred dollars,’ etc. The issue presented to the jury was a very narrow one. The complaint alleged that the insured died from external, violent, and accidental means, and that his injuries were not wantonly inflicted by himself, nor inflicted while insane. The answer set up a general denial, after admitting the making of the policy, and then pleaded as a separate defense that the insured died from injuries wantonly inflicted by himself. The plaintiff, under the issues as framed, was called upon to prove by a preponderance of evidence that her husband died from external, violent, and accidental means. The fact that the defendant had alleged as a separate defense that the injuries were wantonly inflicted by the insured did not tend in any way to relieve the plaintiff from the burden of proof under which she rested to make out a prima facie case. This case has been three times tried. At the first trial the verdict was for the defendant, and the judgment entered thereon was reversed by the general term. 71 Hun, 146,24 N. Y. Supp. 537. On the second trial the jury failed to agree. 28 N. Y. Supp. 951. The judgment for plaintiff at the third trial is now under review. The questions of law presented relate to the alleged errors of the trial judge in charging the jury.

A brief reference to the facts of this case is necessary before considering the legal questions. The insured, at the time of his death, was in San Francisco, but resided in the city of Brooklyn, where he had lived for several years, with his wife and children, prior to his decease. He was a speculator in mining properties, and a promoter of mines in the Western states, and his business called him at times to San Francisco for prolonged intervals. During his last visit to San Francisco the insured stopped for some time at a house known as the ‘Baldwin Hotel,’ and there is conflicting evidence as to whether for some weeks prior to his death he was suffering from mental depression due to the unsatisfactory condition of his business affairs, aggravated by constant physical pain caused by an imperfect recovery from a broken thigh. The day before his death, being July 31, 1890, he went, without his baggage, to a fourth-class lodging house in San Francisco, called the ‘Pioneer House,’ and took a room. The next morning he was found dead in his bed, undressed, with a pistol shot wound in the top of his head, and a five-chambered revolver, with one chamber discharged and the others loaded, lying at his side. Neither the question of murder nor insanity is in the case. The pistol found in the bed was the property of the deceased, and the one question for the jury to determine was whether death resulted from accident or suicide. In a close case like this, where the evidence on both sides is largely circumstantial, it is of vital importance that the jury should be clearly instructed as to the burden of proof and the general principles of law governing their action. In reading the charge of the learned trial judge, it will be observed that it is entirely silent as to the burden of proof resting upon the...