If the view of the evidence taken by Mr. Justice Merrell is justified, there was failure of proof and the complaint should have been dismissed. A new trial, therefore, should not be granted. In my view the finding that due proof of death was presented was fully warranted. In considering this question we are more concerned with the events of August 21, 1932, than with subsequent events.
At the outset it is to be observed that the insured was living happily with his wife and two children, one thirteen and the other fourteen years of age. Temporarily, his wife and children were at Bethlehem, N. H., for the summer, where the insured had sent them for then vacation and where his wife was engaged in conducting a boarding house. There is no evidence tending to show that the insured or his family were in financial straits, nor anything to reflect upon his good name or character.
August twenty-first was a Sunday. The weather was hot and it was not unnatural or unreasonable that the insured should have gone to the ocean beach with thousands of his fellow-citizens. He was accompanied by Barry and a friend, Nathan Feinberg. When they arrived at the beach all went to a bungalow owned by Milton Feinberg, where Nathan Feinberg intended “ to call for ” his wife and two children.
Barry and the insured put on their bathing suits at the bungalow and went together to the beach. Neither could swim. The ocean was very rough. They were not bathing between the ropes which afforded protection, but at a point on the beach separated by a pile of stones from the main beach. While there were several persons on the beach at this point, few if any were in the ocean except Barry and the insured.
After the insured disappeared Barry first made a search for a few minutes and then went a distance of 300 feet to call a fife guard who told Barry that they had no business to go swimming where there were no ropes. After the search of the life guard proved unsuccessful, Barry returned to the Feinberg bungalow and he was accompanied to the beach by several persons. The search was continued and was not given up until late in the evening. A *180large crowd gathered. The police were notified and after coining to the beach to investigate, they went to the Feinberg bungalow, where they found the clothes of the insured including his money, a letter from his wife, and his keys. They took charge of these effects.
The insured’s wife testified that she had not seen the insured since August 21, 1932, but that she visited the morgue on several occasions without being able to identify the bodies seen as that of her husband.
No proof was offered by the defendant to contradict any of these facts. No one who was present at the beach was called and no evidence was introduced tending to show that the ocean was not “ very rough ” as claimed by Barry. The latter at no time changed his testimony with respect to occurrences at the beach in any respect.
In attempting to cast doubt upon the likelihood that the insured was drowned, appellant’s counsel urges that the latter made- no outcry and that it is unreasonable to believe that his body could have disappeared under the circumstances.
I am of the opinion that the jury were fully justified in finding that it was quite possible for the body not to have been seen again, in view of the heavy sea that prevailed. It was wholly probable that the deceased was rendered unconscious and swept away by the undertow which usually prevails under such conditions.
It was not unreasonable for one, who, like Barry, had witnessed a scene of this kind, to have entertained hope that possibly the insured had not been drowned. It seems to me that the jury in passing upon the issues were well within their rights in judging Barry’s subsequent acts in this light. It is to be borne in mind, too, that he at no time said that he had seen the insured, but had thought he had seen him. So, too, at no time did he state to the representative of the defendant that he could find and produce the insured, but that rather he hoped to be able to do so.
The jury had a right to wholly disregard the testimony of the witnesses, Pickoff and Kiersh. Both testified that the man they saw wore a beard and mustache. Pickoff was unable to say he was the insured.' He further testified that the man at the time wore no hat. Kiersh, while testifying that the man they saw was the insured, said that he wore a hat which was down over his eyes. It is significant that Kiersh, notwithstanding the fact that he claims to have identified the insured, did not approach him at the time and inquire why he did not return to his home, and why he was masquerading in such a disguise. The jury had a right to find that these witnesses were biased by virtue of the fact that the wife of *181the insured applied for death benefits to the lodge of which the insured and the witnesses were members.
In my judgment a reversal of this judgment would be unjust, and I, therefore, vote to affirm.
Untermyer, J., concurs.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.