#### DE VAN v. COMMERCIAL TRAVELERS’ MUT. ACC. ASS’N OF AMERICA.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Accident Insurance—Drowning.

Involuntary death by drowning is death by external, violent, and accidental means, within the meaning ot an accident life policy.

3. Action on Accident Policy—Suicide—Question for Jury.

In an action on an accident policy it appeared that the insured was found between 5 and 6 o’clock in the morning in a canal at the foot of a street at or near the termination of a sidewalk running up to the margin of the canal, where there had previously been a bridge, and where a new one, being constructed, was then unprotected; and there was direct and positive proof as to the cause of death and the surrounding circumstances. *Held,*that it was a question for the jury whether the insured committed suicide.

8. Same—Intoxication—Questions for Jury.

There was evidence that the insured drank liquor on various occasions during the four days previous to his death, but the witnesses who saw him during the time, and last on the night before” he was drowned, testified that he was all right, was not intoxicated, and not under the influence of liquor. *Held,*that whether he was under the influence of liquor when the accident occurred, and whether death occurred in consequence *932of his having been under the influence of liquor, were questions for the jury.

4. Insurance—Objections to Proof of Loss—Estoppel.

Where proofs of loss are made on blanks furnished by the company, and the company retains them over a month, when it refuses to pay the claim, it cannot afterwards object to such proofs.

Appeal from circuit court, Oneida county.

Action by Ada S. De Van against the Commercial Travelers’ Mutual Accident Association of America. From a judgment entered on the verdict of the jury in favor of plaintiff, and from an order denying a'motion for a new trial, defendant appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

M. M. Van Auken, for appellant.

S. M. Lindsley, for respondent.

MERWIN, J.

This action is based on a certificate of membership issued by the defendant to Theodore J. De Van, the husband of the plaintiff, on the 17th day of March, 1888, in and by which the defendant, for certain considerations therein named, agreed to pay to the plaintiff the sum represented by the payment of $2 by each member of the association, not to exceed the sum of $5,000, “within ninety days after satisfactory proof shall have been duly filed with its secretary that the said Theodore Jay De Van, at any time during the continuance of this membership, shall have sustained bodily injuries effected through external, violent, or accidental means, within the intent and meaning of this contract, and the conditions hereto annexed, and such injuries alone shall have occasioned death within ninety days from the happening thereof.” In one of the conditions annexed it was provided that the benefits under the certificate should not extend “to any case except where the injury is the approximate and sole cause of the death or disability, or when the injury may have happened while the member was, or in consequence of his having been, under the influence of intoxicating drinks, or to any death or personal injury, unless the claimant under this certificate shall establish by direct and positive proof that the death or . bodily injury was caused by external, violent; and accidental means, and was not the result of design on the part of the member.” The defenses were: (1) That the insured committed suicide; (2) that his death occurred in consequence of his having been under the influence of intoxicating liquors; (3) that it occurred while he was under the influence of intoxicating liquors; (4) that the claimant did not establish by direct and positive proof that the death was caused by external, violent, and accidental means, and was not the result of design on the part of the member.

The body of De Van, ihe insured, was found between 5 and 6 o’clock in the morning of July 16, 1893, in the canal at the foot of Mulberry street, in the city of Syracuse, at or near the termination of a sidewalk running up to the margin of the canal, and which was then unprotected. There had previously been a bridge there, and one was then in process of construction. De Van was last seen alive about 2 o’clock of that morning, at or near a hotel in that vi*933cinity. It was a very warm and muggy night, and the claim of the plaintiff is that the decedent, in attempting to cross the canal, accidentally fell in and was drowned. It was practically undisputed that De Van came to his death by drowning. Involuntary death by drowning is a death by external, violent, and accidental means, within the meaning of a certificate or policy of the kind here in question. Tucker v. Insurance Co., 50 Hun, 51, 4 N. Y. Supp. 505; Indemnity Co. v. Dorgan, 7 C. C. A. 581, 58 Fed. 954; 2 Bac. Ben. Soc. § 484. Where, from the facts of the case, it appears that a violent death was either the result of accidental injuries or of a suicidal act of the deceased, the presumption is against the latter. Mallory v. Insurance Co., 47 N. Y. 52.

Very clearly the question whether the decedent committed suicide was for the jury. There was direct and positive proof as to the cause of the death and of the surrounding circumstances, from which it was for the jury to say whether or not the death was the result of design on the part of the member. The character or grade of the evidence was, we think, sufficient to answer the requirement of the condition on that subject. Peck v. Association, 52 Hun, 259, 5 N. Y. Supp. 215; Utter v. Insurance Co., 65 Mich. 545, 32 N. W. 812; 2 May, Ins. (3d Ed.) p. 1191.

The main question in the case relates to the defense that the death occurred when the insured was under the influence of intoxicating liquors. This proposition the jury in effect answered in the negative, and the claim of the appellant is that the verdict in that regard is against the evidence. It was shown on the part of the appellant that De Van was at Syracuse on the night of Wednesday, July 12th, and that at divers occasions from that time until a short time before he was found drowned in the canal he drank intoxicating liquor. No doubt the jury might have found from the evidence that he was under the influence of liquor when he fell into the canal, but whether they should necessarily have found that is another question. One of the witnesses for the defendant, who was with the decedent a large portion of Friday night and Saturday, testified that when he last saw him, about half past 6 Saturday evening, he was all right. On the part of the plaintiff it was shown by Mr. Larrabee, who for several years had business dealings with De Van, that he (De Van) came into the office of the witness about 4 o’clock in the afternoon of Friday, July 14th, and remained there about an hour, so that the witness had opportunity to observe whether he was under the influence of liquor; and that at that time there was no indication of his being intoxicated, or that he had been drinking; and that, in his judgment, he was perfectly sober. Mr. Young, the partner of Larrabee, was present on the same occasion, and corroborates the evidence of Larrabee. Mr. Mills, who was with De Van for several hours Saturday night, and up to a short time before' he was found drowned, and was the last person who saw him alive, testified that, although during the night De Van drank several times, he was not intoxicated, and that he couldn’t say that he was under the influence of liquor. This witness also described the situ*934ation and appearance of De Van during the night, and when he left him. Another witness testified that 10 o’clock, or a little after, on Saturday night, De Van came into a restaurant where she was at work, talked with her, and remained a short time, and that there were no indications in the least that he had been drinking. Whether or not De Van was at the time of the accident in the condition claimed by the appellant was a matter of inference to be drawn not only from such oral evidence as the jury considered credible, but also from all the surrounding circumstances that appeared in the case. It was peculiarly a question for the jury, and their conclusion should not, we think, be disturbed. The case of Couadeau v. Accident Co., 95 Ky. 280, 25 S. W. 6, seems to be quite in point as to the right of plaintiff to have the question determined by the jury. For similar reasons the question whether the death occurred in consequence of the insured having been under the influence of intoxicating liquors was for the jury.

It is suggested by the appellant that the proofs of death furnished by the plaintiff to the defendant were not sufficient. Blanks were used that were furnished by defendant, and the proofs were delivered to the defendant on the 29th January, 1894, within the time allowed by the certificate. They were retained by the defendant, and not objected to, and on the 3d April, 1894, the defendant refused to pay the claim. The defendant is not in a position to object to the proofs. Titus v. Insurance Co., 81 N. Y. 410. The judgment should, we think, be affirmed.

Judgment and order affirmed, with costs. All concur.