#### MAMIE W. BARKER v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY and SOUTH ATLANTIC LIFE INSURANCE COMPANY.

(Filed 1 October, 1913.)

1. Insurance — Suicide—Declarations—Res Gestae — Evidence.

In an action on a life insurance policy, tbe unfulfilled declarations of tbe deceased of an intention to get a pistol for lawful purposes, made two weeks and also ten months before his death, are incompetent to rebut suicide, it appearing that the deceased was found early one morning dead from a pistol in his hand; the declaration having been made too remote in point of time to be a part of the res gesta, and also being statements made in his own interest.

2. Same — Appeal and Error.

A new trial will not be granted for erroneous admission of evidence or other errors unless it appears that the appellant has been prejudiced, but in this case it is held that the admission of unfulfilled declarations of the deceased to buy a pistol for lawful purposes, which were erroneously admitted, was reversible error in an action on a life insurance policy which was defended on the ground of suicide.

*176Appeal by defendant from 0. II. Allen, J., at June Term, 1913, of Carteret.

A. D. Ward and T. D. Warren for plaintiff.

Guión & Guión for defendants.

Clare, C. J.

This is an action by the widow of Joseph 0. Barker on two policies issued by the defendants separately, upon the life of her husband, in which she was named as beneficiary. The actions were brought separately, but by consent they were consolidated and tried as one, the same questions 'being presented. Indeed, the only matter at issue is the defense that the insured committed suicide.

The plaintiff was allowed to testify that some eight or ten months before her husband’s death he stated to her that he needed a pistol as deputy sheriff, and was thinking of getting one, and she also gave a conversation on another occasion, later, between herself and husband, as to the need of a pistol to protect herself in his absence. The object of this testimony was of course to rebut the theory of suicide based upon the purchase of the pistol by him on the evening, or afternoon, of 7 March,.1911, the evidence being uncontradicted that the insured was killed by that pistol, in his own hands, 6:30 the next morning. The controversy is as to whether-such killing was intentional or accidental.

The conversations testified to by the wife as having occurred “eight to ten months previously” and at the other time were incompetent as hearsay. They could not possibly be a part of the res gestee. The times were too remote for that purpose. Such conversations were not merely irrelevant, but were calculated to prejudice the defense. That the assured had, or had not, an-intention to buy a pistol for a legitimate purpose eight or ten months previously and-on the other occasion referred to, two weeks before the death, could throw no possible light upon the question whether he had an intention to kill himself at the time he bought the pistol. Nor could hearsay evidence of his declarations to his wife in his own favor on. those occasions be *177admissible. Declarations against tbe party’s interests are competent, but not self-serving statements, except in corroboration of competent statements.

Suppose tbe assured bad not succeeded in tbe act, and bad been indicted tberefor, could these declarations bave been admitted in bis favor? On tbe other band, suppose be bad been indicted for murder committed with that pistol — the killing of some one else than himself — could these declarations made to bis wife weeks and months previously of bis disposition to buy a pistol for tbe legitimate purpose, which purpose was not then executed, be admitted to rebut tbe presumption arising from tbe billing with a deadly weapon ? Suppose, indeed, on such indictment for homicide tbe same question bad arisen as here, whether tbe shooting was intentional or accidental, would such previous statement by him of an unexecuted intention be competent in bis defense? We think not. It follows, therefore, that they were incompetent when tbe question is whether tbe billing of himself was accidental or intentional.

We are not disposed to grant a new trial for error in tbe admission or rejection of testimony unless we can see that it was prejudicial, but we think that tbe admission of this testimony mqst bave been injurious to tbe defendants. It was introduced for that purpose. There must be a '

New trial.