New York Life Insurance v. Ittner

Felton, J.,

concurring specially. I concur in all that is said in the foregoing opinion. I am also of the opinion that a verdict for the plaintiff was not authorized by the evidence. The burden of proof was on the plaintiff. The uncontradicted facts presented two equally consistent, opposing theories, giving the plaintiff’s evidence and contentions the most favorable interpretation possible (and even then it is extremely doubtful that they are as reasonable as the suicide theory). In such a situation the party having the burden of proof fails to sustain his position. The verdict in this case can not be sustained by unauthorized consideration of the fact that the deceased up to the time of his death had not attempted suicide, and generally loved life too well to take his own. The jury could not logically consider facts which apply to a normal man when the uncontradicted evidence shows that the deceased was not a normal man so far as his attitude toward taking his life was concerned. The jury was confined to the evidence in the case, which excluded the idea of the deceased’s love of life as a normal man as determined by the evidence outside the circumstances attending his death.