The evidence as contained in the brief thereof consists of 213 pages of oral and documentary evidence. It shows substantially the following:
The insured, a contractor living at Albany, Georgia, left his home on the morning of September 5, 1934, ostensibly to go to McRae, Georgia, where he was building a court-house. He was never seen alive after leaving Albany on the morning in question. On Friday, September 7, 1934, his car was found at the end of a *Page 820 dirt road leading into a swamp, and on the following morning his body was found in the swamp several hundred yards from his car. The car was located about two miles off the paved road, and was at the end of the dead-end road, parked under a tree on the side of the road. The ignition of the automobile was locked, and the doors of the car were closed but not locked. There were no signs of any struggle at or near the car. In the car was an overnight suit-case belonging to the insured. In the suit-case was found a case which was variously testified to be a tooth-brush holder and a razor-case. Mrs. Ittner testified that it was an empty tooth-brush holder. Later she testified: "I didn't keep the case that might have been a razor case, or a tooth-brush case, or whatever it was." Also in the suit-case was a part of a pasteboard carton marked "Poison." This was explained by Mrs. Ittner by testifying that she had let the janitor at her apartment have a bottle of lysol, and that when it was returned by him it was opened by Mr. Ittner and placed in the bathroom, where it still was. She testified that the top of this carton was the one found in the suit-case. The body of the deceased showed that his throat had received three gashes which appeared to have been made with a razor. His legs, arms, and abdomen showed evidences of stab wounds, which appeared to have been made by a small sharp instrument. These wounds were in his legs between his knees and his ankles, on his arms between his wrists and his elbows, and in his abdomen in the region below the heart. There was some testimony that there was a stab wound in the back of his neck about one and a half inches deep, which appeared to have been made by a small sharp instrument, and which wound went straight in. Other testimony was that there was no stab wound in the back of his neck. There was a bruise on the left side of his face, but, other than the gashes and stab wounds, the skin was not broken on the body. The undertaker who prepared the body for burial testified that the left jaw was broken; but three doctors, who either performed or were present at the autopsy, after removing the skin from the jaw, testified that there was no fracture of the jaw.
Some distance from where the body was found there was a blood-stained razor, partially under a log away from the body of the deceased. There was testimony that it was clearly apparent that this log had been removed from its seat in the swamp. Nearer the *Page 821 body was found a blood-stained pocket-knife. A small empty vial or bottle was found near the body. The shirt had been removed from the body, and was found hanging on a bush near by, as was the collar. The body was lying face downward, on the left side of the face. The belt of the deceased had been removed and placed around his neck, and through the loop so formed a long stave had been placed and so twisted that the belt tightened in such a manner as to choke him. Under the belt had been placed his handkerchief. One of his socks had been removed, and the shoe replaced without the sock. The sock, very bloody, was found a short distance from the body. In the pocket of the deceased were found his collar-button, the keys to his automobile, some $19, and his watch. A ring on his finger had not been bothered. It appeared from some of the witnesses that there was no blood where the body was found. Near the log where the razor was found there was blood. On a tree near by was a bloody handprint. There were drops of blood leading from there to where the body was found. The ground and underbrush were dry, and gave the appearance of having had a foot or a pole dragged through some oak leaves. Mrs. Ittner testified that on the morning the deceased left Albany "he did not give any evidence of any disturbances, or being angry with anybody. He did not appear to be disturbed or distressed about anything. He was more optimistic than he had been for several years. We had been married seven years. During that time he did not get drunk or intoxicated or drink liquor. He left me that morning in a perfectly good humor. Our domestic relations were perfectly pleasant." She further testified that when she was asked if she wanted some one to search for Mr. Ittner she replied: "No; if he has gone off and you go to try tracing him up, finding out where he is gone, when he comes back it is going to be too bad for whoever does it." Though Mr. Ittner had not smoked for years and refused to let anybody smoke on his job, he had recently started smoking. A few days before his death was reported, in a conversation with a witness, the deceased expressed regret at an occurrence which had happened between them. The witness testified that he was very glad Ittner had spoken to him, and that Ittner was very cheerful at the time. On the day he left he complimented a laundry boy on his honesty for returning some article to him. *Page 822
Some ten years before Ittner's death he was sent to Atlanta by his physician for observation and treatment. His history as given to the doctor showed that he was subject to fits of melancholia and had been having distinct suicidal tendencies. He was admitted to Emory Hospital, and on examination it was found that he was suffering from syphilis, for which he was given intravenous injections. While he was in the hospital, and at a time when the doctor had ordered that he be not left alone for a minute, he eluded his nurse, locked himself in the bathroom, and with a razor which he had smuggled into the hospital cut himself in very much the same way he was cut when he was found dead. He was sewed up, and, after being in the hospital a while, was discharged as improved. The final diagnosis as shown by the hospital record was that he had tertiary syphilis and acute alcoholism. There was testimony that where syphilis and acute alcoholism were present, as in this case, a suicidal tendency was apparent in many cases; that this suicidal tendency and melancholia might recur at any time within five or ten years; and that if the syphilis remained uncured and treatment was not continued, the likelihood of its recurrence would be greater. One physician testified that if the home life of the deceased was perfectly happy, his financial condition good, and he was otherwise happy, his depressive melancholia, in the opinion of the witness, was not caused by syphilis. There is medical testimony in the record that the wounds in the body of the deceased could not have been self-inflicted in given sequences; for instance, the gashes in the throat could not have been inflicted with the belt around it. There was testimony by the embalmer that any wound he saw on the body could have been self-inflicted. There was medical testimony that in the opinion of the witness the three bruises on the head of the deceased could not have been self-inflicted. There was medical testimony that a man who had a happy married life, was in good financial condition, having no worries, and nothing to make him unhappy, would not suddenly, without any indication or suggestion in any form, go madly, raving crazy without premonitory, external symptoms, from neuro-syphilis.
L. L. Folsom testified that on the morning of Mr. Ittner's disappearance he telephoned Ittner to find if Ittner wished some tile unloaded. Ittner said he had already told the witness to order the tile, but that the tile had not been ordered because witness did not *Page 823 have any of the specifications. Ittner then told him he would see him in McRae. Witness sued the bonding company and Mrs. Ittner for the balance of the money due on his contract with Ittner, which suit was settled by the bonding company. The autopsy performed on the body was concerned solely with the fracture of the jaw. There was no examination of the viscera for poison. No investigation was made by the authorities with the view of apprehending any one for the death. No reward was offered for evidence of foul play, or for the apprehension and conviction of the perpetrator. There is testimony in the record by the foreman of the coroner's jury, to the effect that there was no stab wound in the back of the neck of the deceased.
Giving to the evidence the construction most favorable to Mrs. Ittner, it is even then very doubtful whether the theory of murder is as reasonable as that of suicide. The theories of injury by automobile and accidental injury, outside of murder, are out of the question. The principal contention of counsel for the defendant in error is that a murderer planted the evidence to make the alleged murder appear to be a suicide. Among other difficulties arising from this contention comes the question whether the deceased might not have committed suicide and endeavored to make it appear to be murder. I do not intimate that this is true, but it is as feasible as that the death was a result of murder. If Ittner was murdered, he was evidently murdered by one who knew of his previous attempt to take his life and the manner in which he did it. Yet there is not one iota of evidence as to how an outsider obtained the information. There is no evidence of any motive for murder. No investigation was made, no reward was offered, nothing done whatever to bring to justice the fiend — for he would have been a fiend to have perpetrated such an act. No tracks were found around the automobile to indicate the presence of another person. There was no evidence to authorize a logical inference that there was any scuffling in the swamps. All the trampled or mashed grass and undergrowth could easily have been caused by Mr. Ittner's falling, lying down, and crawling. It would seem that if a murderer was intent on making the death look like suicide, he would not have placed the razor in a place which, as counsel contend, made it resemble murder. The razor might have been thrown down by the deceased and later the log might have been kicked *Page 824 or moved over it, as one witness made the significantstatement that one could tell that the log had beenmoved out of its old seat in the swamp. The deceased could have killed himself by choking in the manner shown by the evidence. If he so attempted, his failing on the stave would have held the belt tight, and made impossible a resuscitation such as would have occurred if the attempt had been by hand. There is very slight evidence of Mr. Ittner's state of mind. There is noevidence of lack of financial troubles. Symptoms of melancholia and despondency could easily have been manifested in spite of the meager testimony on the subject. Mr. Ittner had a contagious disease and had attempted suicide on a previous occasion. There was no evidence that he received treatment which would have cured his disease. Dr. Hilsman, his family physician, swore that he had never treated Ittner for the disease; but he did not swear that he ever examined him for it or that he did not have it.
The evidence is too long to warrant a further detailed discussion. The evidence offered against suicide is not inconsistent with it. The purpose of this much discussion is to show that, assuming for the sake of argument that the theory of murder is at all reasonable, it can not be said to be more reasonable than suicide. It is true that some of the witnesses swore that in their opinion Ittner could not have inflicted the wounds on himself. Some of the doctors swore that in their opinion he could not have inflicted the wounds which made bruises on his face. They overlooked the possibility of his falling against logs and trees in his feeble and weakened condition, if such was the case. There was no conflict in the evidence which would make the solution of this puzzle a question for a jury. It must be decided on a question of law. Where proved facts give equal support to each of two inconsistent inferences, neither is established, and judgment must go against the party on whom rests the necessity of sustaining one of them against the other.Hanover Fire Insurance Co. v. Pruitt, 59 Ga. App. 777,781 (2 S.E.2d 123); Pa. R. Co. v. Chamberlain,288 U.S. 333 and cit. (53 Sup. Ct. 391, 77 L. ed. 819); United States Fidelity Guaranty Co. v. Des Moines National Bank, 145 Fed. 273; Patton v. Texas Pacific R. Co., 179 U.S. 658 (21 Sup. Ct. 275, 45 L. ed. 361); Grosvenor v. Fidelity Casualty Co., 102 Neb. 629 (168 N.W. 596); Wheelock v. Freiwald, 66 Fed. 2d, 694, and cit.; *Page 825 Fort Smith Gas Co. v. Cloud, 75 Fed. 2d, 413 ( 97 A.L.R. 833); 9 Wigmore on Evidence §§ 2495 (a), (b); Smith v. First National Bank of Westfield, 99 Mass. 605 (97 Am. D. 59); Watkins v. Prudential Insurance Co.,315 Pa. 497 (173 A. 644, 95 A.L.R. 869 (3)); GeorgiaRailway Electric Co. v. Harris, 1 Ga. App. 714 (57 S.E. 1076); Federal Reserve Bank of Atlanta v.Haynie, 46 Ga. App. 522 (168 S.E. 112); Taylor v.State, 44 Ga. App. 387 (161 S.E. 793); Matthews v.Gulf Life Insurance Co., 64 Ga. App. 112 (12 S.E.2d 202); Jefferson Standard Life Insurance Co. v. Clemmer, 79 Fed. (2d,) 724 (103 A.L.R. 171). The plaintiff failed to sustain her case, and in my opinion the judgment should be reversed.
There is an obiter dictum in the former decision in this case, hereinbefore referred to, to the effect that a jury may consider and give weight to the facts out of which the presumption against suicide springs, after thepresumption has been removed, in arriving at a verdict. The same statement has been made in a great many other cases in connection with such a question as this court was discussing in its former opinion. It had no relevancy on the question being decided, and on further study I have concluded that it was unwarranted. In Watkins v. Prudential Insurance Co., supra, the court said: "Presumption arise as follows: they are either (1) a procedural expedient, or (2) a rule of proof production based upon the comparative availability of material evidence to the respective parties, or (3) a conclusion firmly based upon the generally known results of wide human experience, or (4) a combination of (1) and (3). The presumption as to the survivorship of husband and wife meeting death in a common disaster is a procedural expedient. It is not based upon extensive data arising from human experience. An unexplained absence for seven years raises the presumption of death of the absentee upon the expiration of the last day of the period. This also is a procedural expedient — an arbitrary but necessary rule for the solution of problems arising from unexplained absences of human beings. An example of (2) is the rule requiring persons on trial for doing certain acts which are illegal if done without a license to produce evidence that they belong to the class privileged by the license. See Com.v. Wenzel, 24 Pa. Super. 467. The following are examples of (3): (a) An envelope properly addressed and stamped *Page 826 will reach the addressee if the latter is alive; (b) a child born during the wedlock of its parents is legitimate; (c) a person who drives across a railroad crossing will use due care. If the driver is killed at such a crossing, the presumption that he showed due care shifts the burden of proof to the party who defends the action on the ground of the victim's want of care. (In this example, the presumption of the victim's due care is merely the converse of the statement that the burden of proof rests on the asserter of the victim's negligence.) A presumption that a debt is paid after a lapse of a definite long period of time is both a procedural expedient (1) and a conclusion based on the results of wide human experience (3). The so-called `presumption against suicide' is neither a procedural expedient (1) nor a rule rooted in the consideration that one of the litigants has possession of the most available evidence determination of the issue trying (2), nor is it a conclusion based on the known results of wide human experience (3). It is merely a permissible consideration of the nonprobability of death by suicide."
Upon consideration it will be seen that the presumption against suicide does not owe its existence to facts having evidential value. What most people do or do not do has no bearing whatever on whether one particular individual committed suicide or was killed accidentally. The effect of such a presumption is the inference that one was killed accidentally, when a violent death is proved and there is no evidence whatever from which a jury could arrive at an explanation of how it occurred. When evidence appears from which suicide may be inferred, we have held in this case that such an inference may no longer be permitted because the whimsical and illusory presumption can not be allowed to play a part in the light of the facts. We also held that such an inference is not permissible when there is evidence from which two theories of death maybe found. In the light of these rulings, to say that when the presumption has vanished a jury may still infer, from the fact of the love of life, imbedded in the depths of most humans, that the death was accidental, in spite of evidence authorizing a finding of suicide, is the same thing as authorizing the presumption in the first place where no facts appear from which an intelligent finding can be made. That most people love life too well to destroy it is not a factabout the deceased from which the presumption *Page 827 springs. That he was a human being is not such a fact. The presumption is "merely a permissible consideration of the non-probability of death by suicide." The saying that even though a presumption has been removed a jury may consider the facts out of which it sprang arose from a consideration of facts having some evidentially value and which gave rise to particular presumptions. For instance, the presumption that one who has been absent and unheard of for seven years is dead vanishes on proof that when he departed he stated an intention to remain away for ten years, but the fact that he has been absent and unheard of for over seven years may be considered with other facts in the case in determining whether he is dead. But these are evidential facts about the partyhimself, and possess probative value. Such a statement can not logically be made with reference to the presumption against suicide and the basic facts on which it is founded. If a jury is authorized or empowered to consider the basic facts of love of life and improbability of suicide in arriving at a verdict in cases where the presumption does not apply, they will have the power to apply the presumption despite its supposed disappearance, and can decide that any suicide is accidental, or use the facts of love of life and improbability of suicide to throw the weight of the evidence to the theory of accident. The only time this can be done, as we have held in this case, is when thereis no evidence as to the cause of the death.
In Jefferson Standard Life Insurance Co. v. Clemmer, supra, the court said: "Ordinarily it is not necessary to refer to the presumption against suicide in the charge to the jury. If the basic fact of death by violence is admitted, or proved, the presumption arises, and in the absence of countervailing evidence, the judge should direct a verdict for the plaintiff. If such evidence is produced, the judge should charge the jury in the usual fashion. He may of course refer in his discretion to the improbability of suicide as an inference of fact, based on the common experience of mankind, but the jury should be permitted to give the inference such weight as it deems best, undisturbed bythe thought that the inference has some sort ofartificial probative force which must influence theirdeliberation. Likewise, as to the opposing evidence, the jury should be instructed to weigh its credibility and effect in the usual way, and finally, upon the whole evidence, to determine *Page 828 whether death by accident has occurred, bearing in mind that if the evidence leaves their minds in such doubt that they are unable to decide the point, the verdict should be against the party upon whom the persuasion rests." (Italics mine.)
In my opinion it was error to admit in evidence a certified copy of the certificate of death of the insured and proofs of loss submitted to the company, having attached a copy of the death certificate which contained a copy of the verdict of a coroner's jury finding that the insured came to his death from hands of unknown parties, over the objection that the certificate included matter not provided for by the Code, § 88-1214, and that it was prejudicial and without probative value. Such a verdict is without probative value in a case like this, as against the insurance company. Smalls v. State, 101 Ga. 570 (28 S.E. 981, 40 L.R.A. 369); Central Railroad v. Moore, 61 Ga. 151;Supreme Council of Royal Arcanum v. Quarles,23 Ga. App. 104 (97 S.E. 557); Morton v. Equitable Life Insurance Co., 218 Iowa, 846 (254 N.W. 325, 96 A.L.R. 315); Haugabrooks v. Metropolitan LifeInsurance Co., 63 Ga. App. 829 (12 S.E.2d 163). If such a verdict alone is harmful to the insurer, it would seem that it would be if included in some other document where it had no place. The statement in the Quarles case, supra, to the effect that such a verdict might be received in evidence as a part of the proof of death, was obiter dictum and contrary to what was actually adjudicated in that case.