Gioia v. State

Williams, P. J. (dissenting).

I do not disagree with the general principles of law stated in the prevailing opinion. Nevertheless, I would affirm the judgment appealed from.

There are in evidence two documents which would support a finding of fact that the claimant committed suicide while temporarily insane. The first is a document from the records of the Rochester State Hospital which contains a diagnosis of “Psychoneurosis, Reactive Depression”. It also gives the nature and cause of suicide as “ Asphyxiation by strangulation while temporarily insane ”. This is signed by Dr. Terrence, the Director of the State hospital, and bears the notation that it was submitted to the Commissioner of Mental Hygiene in accordance with General Order No. 12.

The second document is the official certificate of death, which also gives the immediate cause of death as ‘‘ Asphyxiation by strangulation while temporarily insane ”. This latter certificate is presumptive evidence of the facts therein alleged. (Civ. Prac. Act, § 367; Public Health Law, § 4103; Brownrigg v. Boston & Albany R. R. Co., 8 A D 2d 140, 141.) There is nothing in the record to destroy the presumption of temporary insanity at the time of death. Nor may we say that the medical examiner, a physician, did not make a complete examination before he arrived at that determination. In any event there was no burden on the claimant, as inferred in the prevailing opinion, to overcome the presumption.

There is ample evidence of negligence on the part of the employees of the State hospital, and the record abounds with evidence that the claimant was possessed of suicidal tendencies and that the officials of the State hospital knew of such tendencies.

For these reasons the Court of Claims Judge should have made a finding that deceased was temporarily insane at the time that he committed suicide. The record would amply support a finding to that effect by this court. I would make such a finding and affirm.

Bastow, McClusky and Henry, JJ., concur with Halpern, J.; Williams P. J., dissents and votes for affirmance in opinion.

Judgment reversed on the law and facts and a new trial granted, without costs of this appeal to either party.