Appellant states in argument that its six exceptions raise two questions. Taking the latter in reverse order, the second is: "Was the charge of his Honor, the trial Judge, in regard to the presumption against suicide, so conflicting and contradictory as to confuse the minds of the jury and leave them in doubt and allow them to speculate on this important phase of the case?" *Page 182
Omitting formal parts, the Judge's charge was as follows:
"The plaintiff is called upon to prove the allegation of her complaint by the preponderance of the evidence, that is, the material allegations of her complaint. But, in this case the defendant admits certain matters alleged in the complaint and if the defendant had put up no testimony, of course the plaintiff would be entitled to recover the amount of the policy and interest.
"But, the answer of the defendant alleges by way of defense that there is a provision in the policy, which of course is binding on both parties, that provides: `In the event of a Member's self-destruction, same or insane, within one year from the date on which his insurance hereunder became effective, the liability of the Company shall be limited to an amount equal to the premiums paid on his insurance,' which would be, including interest, seventeen dollars and sixty-cents. In any event, if the plaintiff fails on her main contention then your verdict would be, `We find for the plaintiff Seventeen Dollars and Sixty-six Cents.'
"Of course, the main contention confines itself around the question of the allegation of the answer that the insured committed suicide. The law is brief as to that. The law is that a person is presumed not to be guilty of intentional self-destruction, which as you and I know it, is suicide. Suicide means an intentional self-destruction, it wouldn't mean a negligent self-destruction, but it means an intentional or willful, which is the same thing, intentional or willful self-destruction.
"I instruct you gentlemen that the burden is upon the insurer to prove, not beyond a reasonable doubt, but by the greater weight of the evidence, and not necessarily by the greater number of witnesses, that the insured did intentionally kill himself, or prove that it was suicide. If that has been established by the preponderance of the evidence from any testimony that you have heard, then the plaintiff cannot recover. But that is always a question for the jury. After weighing all the circumstances, after weighing all of the *Page 183 testimony, if the insurance company has satisfied you by the preponderance of the evidence that this man committed suicide, then the plaintiff is only entitled to recover seventeen dollars and sixty-six cents. If the defendant has failed to show suicide, as I have defined it, then the plaintiff would be entitled to the sum of two thousand dollars with interest from thirty days after the death of the deceased at six per cent.
"Counsel for the defendant has asked me to charge you the following propositions of law. It might be a charge on the facts, but it is a correct principle.
"`I charge you that in establishing her case the plaintiff does not have the aid of a so-called presumption that the insured's death did not result from suicide. You may keep in mind the general probability against suicide — a probability arising from "the usual current of things," but such so called presumption cannot, and does not have the force of evidence.'
"The Court: I charge you that, gentlemen, in connection with what I have charged you."
The exceptions relevant to this question are the last three, numbers 4, 5 and 6, as follows:
"4. Because the Court erred in refusing to charge the request submitted by the defendant without modification or restriction, the error being that such request embodied the applicable principle of law governing the issues raised by the pleadings and evidence.
"5. Because the charge of his Honor, the presiding Judge, relating to the cause of insured's death, was conflicting, contradictory and confusing by reason of the fact that the jury was first charged that the law is that a person is presumed not to be guilty of suicide, and was later charged that the plaintiff in establishing her case did not have the aid of the so-called presumption that the insured's death did not result from suicide.
"6. Because the Court erred in charging the jury in effect that the so-called presumption against suicide had the *Page 184 force of evidence and may be considered as such, where the defendant had offered testimony tending to show that the insured committed suicide and testimony to exclude any other reasonable hypothesis of death."
The first of the copied exceptions, Number 4, is not substantiated by the record. Unfortunately the latter does not include a separate copy of the request but it appears from the charge in the record, supra, that the request was chargedverbatim for it appears in quotation marks. It must therefore be assumed that appellant refers to the following from the Judge as modification or restriction: "I charge you that, gentlemen, in connection with what I have charged you." The exception points to no other portion of the charge which served to modify or restrict the granted request and is therefore not a complete assignment of error, required by the rules of this Court, and does not merit consideration. However, search of the short charge discloses no instruction in conflict with appellant's request. More will be later said concerning this request and the charging of it in a general discussion of these particular exceptions.
Exception Number 5 charges that conflict, contradiction and confusion in the instructions resulted from the inclusion of appellant's own request. This is not an unfair criticism of the exception for the only conflict with and contradiction of the requested charge which is pointed out is that the Court had earlier instructed that a person is presumed not to be guilty of suicide. Such is certainly the law as will later be elaborated. Despite counsel's designation "so-called", this presumption is very generally considered to be the strongest of all the legal presumptions save one, that of the innocence of one charged with crime. The request is a very good statement of the law in most jurisdictions (see infra); it might have been improved, possibly against appellant's interest, by the inclusion of the words "as evidence" after the word presumption where it first occurs, in the first line, but the next sentence clarifies the meaning admirably and makes the instruction to the effect *Page 185 that while the jury may keep in mind the general probability against suicide, the "presumption cannot and does not have the force of evidence." If there is conflict, contradiction and confusion within the requested charge, which I cannot find, the appellant, the petitioner for the charge, cannot complain.
Exception Number 6 is not borne out by the record, a circumstance which counsel should successfully guard against. It charges that the Court instructed the jury "in effect that the so-called presumption against suicide had the force of evidence and may be considered as such * * *." Quite to the contrary the Court instructed, in compliance with counsel's prayer, that "such so-called presumption cannot and does not have the force of evidence." No further discussion of this exception is necessary.
The foregoing exceptions relating to the instructions to the jury should be overruled. In connection with them appellant petitioned and was granted leave to argue against certain former decisions of this Court which are said to hold that in such a case as this the presumption against suicide is evidence and may be so considered and weighed by the jury against evidence contra. But appellant's position in this respect is inappropriate and need not be considered. Through the agency of its able counsel it was not held in the trial of this action to the rule it would argue against here; instead it persuaded the trial Court to adopt what appears to be the majority rule that the presumption against suicide in such a case as this is not evidence but serves to cast the burden of proceeding or, as it is expressed by some writers, the burden of evidence, upon the insurer. This rule is stated in 20 A.J., 170, as follows: "The effect of a presumption is to invoke a rule of law which compels the jury to return a verdict in accordance therewith, in the absence of any evidence to the contrary from the other side. If the opponent does present such evidence, then the presumption vanishes, and the jury may consider the proof free from any such rule. Thus, the presumption that death *Page 186 resulted from an accident or natural causes rather than from suicide * * * when met by rebutting proof is not evidence and is not to be treated as such by the jury in arriving at a verdict. Such a presumption merely aids in establishing a prima facie case and has no probative effect when countervailing proof is given."
Sections 219 and 220 on pages 215 and 216 of 20 A.J. throw further light upon the subject; they are as follows:
"In cases where death is an issue, but there is nothing to show whether death was caused by accident or by suicide, a rebuttable presumption arises that accident rather than suicide was the cause. In other words, all other things being equal, it is to be presumed when a person is found dead, that he did not die by his own hand. This rule finds frequent application in actions upon insurance policies where it is doubtful whether the death of the insured was caused by accident or by suicide. It has been applied also in cases arising under the Workmen's Compensation Acts. The presumption against suicide is based on the almost universal human characteristics of love of live and fear of death, rather than upon any difficulty of producing evidence. This presumption is said to rest upon the common knowledge that sane persons do not ordinarily kill themselves.
"The presumption against suicide is a strong presumption of fact which, it has been said, ought not to be displaced by slight contrary proof. It is a rule of law which permits, and according to some Courts requires, the conclusion, in the event of an unexplained death by violent injury, that the death was not suicidal until credible evidence of self-destruction is offered. It does not control where there is substantial proof from which rational consideration may reach the conclusion of suicide. It does not exist where it appears that the decedent was insane. In other words, proof of insanity will rebut any presumption that might otherwise arise against suicide.
"The authorities are not agreed upon the broad question whether this presumption against suicide has any probative *Page 187 force after the introduction of evidence bearing upon the claim of suicide. Most Courts adhere to the view that this presumption does not constitute evidence or possess probative force after the introduction of evidence tending to show how death occurred. According to this view, the legal presumption indulged that death was due to accident rather than to suicide disappears when circumstances are adduced showing how the death occurred. In other words, according to the majority view, when such evidence is offered in the course of either the plaintiff's or the defendant's proof, the presumption as a rule of law disappears from the case and the triers of the facts pass upon the issues in the usual way. But there are other courts affirming the view that the presumption against suicide is in the nature of evidence, to be submitted to, and weighed by, the jury in the light of the other facts and circumstances in determining the issue of suicide. The jury, in evaluating the issue of suicide, may consider the facts and circumstances in the light of common knowledge and experience that mankind instinctively desires life, and shuns death."
In the trial of this case it appears that both counsel for plaintiff and defendant recognized this force of the presumption, for plaintiff introduced the policy of insurance and called the attention of the Court to the fact that the death of the insured was admitted in the answer and rested, whereupon the defendant assumed the burden and without making any motion for nonsuit proceeded to offer evidence of circumstances tending to establish suicide and upon its closing, the plaintiff's testimony was offered, as was that of another, both tending to negative suicide by showing the absence of motive, tendency, etc.
Regardless of any presumption it must be held that the defense of suicide is in the nature of an affirmative defense and the jury should have been instructed, as in effect it was, that the burden of proving such by the greater weight of the evidence was upon the defendant and the issue was for the jury unless it should be decided by the Court that there *Page 188 can be drawn from the testimony only one reasonable inference, in which event the verdict should be directed in accord with such single reasonable inference, whether for plaintiff or defendant. That the burden of proof, or as sometimes now expressed the burden of persuasion, so rests in such a case as this is shown by numerous authorities, this being different from a suit upon an accident policy or for double indemnity for accidental death where the burden is upon the plaintiff. See cases cited in 19 S.E. Digest, Insurance, 646 (7), and note in 103 A.L.R., 185.
The last-mentioned annotation is to the case of JeffersonStandard Life Insurance Company v. Clemmer, 4 Cir., 1935, 79 F.2d 724, 730, which is reported beginning at page 171 of 103 A.L.R. From the opinion is quoted the following, pertinent to this case: "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 by the thought that the inference has some sort of artificial probative force which must influence their deliberation. 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 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 burden of persuasion rests. Such a charge can be easily understood and enables the jury to do justice to both sides." *Page 189
And further: "If death from any cause except suicide is insured against, the burden is on the company to prove the exception."
The A.L.R. editor digests this decision in the following language at page 194 of his note with which no conflict can be found in the instructions to the jury in the case at bar: "It was held in the reported case (Jefferson StandardLife Ins. Co. v. Clemmer [4 Cir., 79 F.2d 724, 103 A.L.R.], 171), that while the presumption against suicide, as such, is not evidence, the jury may take into consideration the abnormality of suicide, and give such probative force as their judgment dictates to the consideration upon which the presumption is founded, in a case of death by violence, so long as the inference or probabilities are estimated for their intrinsic value, and are not given the artificial additional probative effect as a presumption. It is not ordinarily necessary, the Court stated, to refer to the presumption against suicide in the charge to the jury, but the Court may in its discretion refer to the improbability of suicide as an inference of fact based on the common experience of mankind."
In view of the evidence in this case and the impression of mystery which it makes upon the mind, the following is an interesting citation and comment from this annotation, page 186 of 103 A.L.R.: "Thus in Brunswick v. StandardAccident Insurance Company (1919), 278 Mo., 154,213 S.W., 45, 7 A.L.R., 1213, involving an accident insurance policy, the Court stated: `The presumption against suicide is a rule of law deduced from convenience and necessity; it is based on the well-nigh universal human characteristic of love of life and fear of death, and it arises in a case whenever the cause of death is in issue and the evidence discloses a state of facts consistent with either accident or suicide. While the doctrine is a veritable presumption of law, it is sometimes and in some of the cases loosely spoken of as a presumption of inference of fact, and is put in the category of evidence. While a few authorities assert *Page 190 the converse, by far the better view is that it is not evidentiary in character; yet when invoked in the trial of a case, in a way as a constituent of evidence, it undoubtedly accomplishes a function of evidence pro hac vice. It is to be invoked, or automatically arises, to be exact, when there is no convincing evidence for or against suicide; and in such case, perforce this presumption alone, a finding in favor of accidental death will be upheld. * * * If there is evidence both for and against suicide, the presumption (unless, as some of the cases hold, and the reason of the thing makes plausible, the evidence be equally balanced) has no place in the reasoning, as its very nature indicates. If therefore, invoked, or present, it vanishes, and the question is to be thereupon resolved upon the evidence. * * * Obviously, the presumption against suicide cannot continue to exist in the face of evidence showing suicide, for such a view would be utterly subversive of the well-settled doctrine, figuratively but strikingly announced by Lamm, J., substantially, to wit, that presumptions are the bats of the law, which the light of evidence frightens and causes to fly away. Mockowik v. Kansas City, St. J. C.B.R. Co. (1906), 196 Mo., 550, loc. cit. 571, 94 S.W. 256.' And further: `Therefore, it obviously follows that such a presumption is not evidence, but that it is a mere term in legal nomenclature, employed to designate the imperative duty or burden upon the side against which the presumption operates, of producing evidence to rebut the finality of the legal conclusion which arises, in the course of a trial of a case, from the proof of other facts.' However, in this case, in which it appeared that the insured was seen to fold up crystals of potassium cyanide in his handkerchief (which was found in his pocket after his death) a few minutes before he was found dead from taking this poison, and that he was aware of the deadly nature of the substance, the Court held that the facts established by the evidence were not sufficient to exclude `every reasonable hypothesis favoring accident', and that there was left, `on account of the *Page 191 presumption against suicide, an inference of accident sufficient to take the case to the jury.'"
It would appear that the charge to the jury in this case given at the request of appellant, was taken from the case of Watkins v. Prudential Ins. Co., 315 Pa., 497,173 A., 644, 95 A.L.R., 877, digested on page 187 of this note in 103 A.L.R. There the Court held that it would have been proper to instruct the jury that in trying the issues andin balancing the evidence for and against the conflictingtheories of accidental death and suicide, the jury keep inmind the general probability against suicide, arising from theusual occurrence of things. It is interesting to compare the emphasized words with the charge here, quoted above. This was an action for double indemnity for accidental death with resulting burden of proof upon the plaintiff, not as here with burden of proof upon the defendant. This case of Watkins is fully reported in 95 A.L.R., 869.
No reasonable inference can be drawn from the evidence in the case at bar other than that the insured shot himself; the issue, resolved by the jury in favor of the plaintiff, is whether intentionally or not, whether suicide or accident. A similar case was Del Vecchio v. Bowers, 296 U.S. 280,56 S.Ct., 190, 193, 80 L.Ed., 229, also treated in this A.L. R. note 103 A.L.R., at page 187, in the opinion in which this appears: "When a trier of facts is to be persuaded of the truth of a disputed proposition, one or the other of the parties, the proponent or the opponent, has the burden of going forward with evidence. In the present instance, the fact that the wound was self-inflicted permits but one of two conclusions; either the decedent accidentally killed himself, or he committed suicide. Considerations of fairness and experience in human affairs induced fact-finding bodies, where there is a balance of probability, to adopt a working assumption as the basis of a conclusion, unless and until the facts are developed by evidence. The natural love of life, the comparative infrequency of suicide as contrasted with accident, and the likelihood that testimony as to the *Page 192 cause of death would be more readily available to the employer than to the claimant justify a presumption, which the law indulges in such a case, that the death was accidental."
A later case from the United States Supreme Court is that of New York Life Insurance Company v. Gamer, 1938, reported in 303 U.S. 161, 58 S.Ct., 500, 503,82 L.Ed., 726, 114 A.L.R., 1218. It was an action for double indemnity where the burden of proof, as we have seen, is upon the plaintiff and the case was remanded for a new trial by jury for erroneous instructions relating to burden of proof and error in instructing to the effect that the presumption against suicide should be weighed by the jury against evidence contra. The rule announced is in striking agreement with the instruction in the case at bar; summed up in the words of that high Court, speaking through Mr. Justice Butler, it is: "In determining whether by the greater weight of evidence it has been established that the death of the insured was accidental (I interpolate: because in that case the burden was on plaintiff to so show; to make completely applicable to this case substitute `suicide' for `accidental' because here the burden was upon defendant to establish its affirmative defense of suicide), the jury is required to consider all admitted and proved facts and circumstances upon which the determination of that issue depends and, in reaching its decision, should take into accountthe probabilities found from the evidence to attend the claims of the respective parties."
Emphasis has been added to bring out the marked similarity of this recent statement of the highest Court of the land to the charge to the jury in the case at bar. Immediately before the foregoing quotation this occurs in the opinion: "Upon the fact of violent death without more, the presumption, i. e., the applicable rule of law, required the inference of death by accident rather than by suicide. As the case stood on the pleadings, the law required judgment for plaintiff." And this was a case where, as pointed out *Page 193 above, the plaintiff bore the burden of proof of accident. The Court went on to rule and hold that after contrary evidence (to wit, evidence tending to show suicide) was introduced the presumption was not evidence and could not be given weight as evidence, precisely as charged in the instant case.
It is clear that should this Court discard the presumption entirely, we would be in disagreement with all of the foregoing authorities; in fact no authority therefor has come to my attention. The presumption of law against suicide arises from the fact of death when the latter is proven or, as here, admitted; and when the death is a violent one, as here, the presumption is, in effect, that death came from accident and the better and majority rule clearly seems to be that such may be considered by the jury for what it is worth to them along with the evidence in the case.
In keeping is the following opinion of the commentator on the Gamer decision in 114 A.L.R., at page 1226: "The effect of the decision in New York Life Insurance Companyv. Gamer (U.S.) (reported here with [303 U.S. 161,58 S.Ct., 500, 82 L.Ed., 726, 114 A.L.R.], 1218), is to place this Court in accord with what is now the conventional view, that a presumption is not evidence and may not be given weight as such, although the jury may, without giving them any artificial weight as a presumption, draw the natural and logical inferences from the facts which are the basis of the presumption." (Emphasis mine.)
The latest reference to the subject found in A.L.R., appears in Vol. 115, page 404, and is as follows: "The great weight of authority at the present day supports the view that a presumption is not evidence and has no probative force, and that where the opponent offers some substantial evidence to the contrary, the presumption disappears and should not be weighed by the jury, although they may still draw reasonable inferences from the facts which gave rise to the presumption." (Emphasis added.) *Page 194
Analysis of the foregoing authorities, illustrative of the rule contended for by appellant, and the charge of the trial Judge, demonstrates, I think, that they are not in conflict; appellant prevailed in its contention in the lower Court and has nothing to found its appeal upon. The Exceptions 4, 5 and 6 and the argument thereon create a "straw man" whose shadow even is not found in the record; and review of former decisions of this Court on the subject is not required or appropriate in the consideration of this appeal on the record before us.
In this view the question is not made as to whether the presumption against suicide is evidence or should be weighed by the jury as such, for appellant's able counsel procured the Court to instruct in this case to the contrary. The existence of the policy and the fact of the death of the insured (established by the pleadings, whereby the presumption against suicide was immediately raised) required submission to the jury for trial the issue of suicide raised by the defendant, unless the evidence offered by the latter, considered with the evidence thereabout offered by the plaintiff, is such that it will justify only one reasonable inference — that of suicide, intentional self-destruction — in which event the direction of a verdict for the defendant would be proper. This, in my opinion after careful consideration of all of the evidence in the record, is not such a case as would warrant such direction in view of the rule, for which no citation of authority is necessary, that upon motion thereof the evidence must be considered in the light most favorable to the party against whom the motion is made.
The latter anticipates appellant's first question which is: "Did his Honor, the trial Judge, err in refusing to direct a verdict in favor of the defendant company, on the ground that the only reasonable inference to be drawn from the evidence is that the insured committed suicide within the first insurance year, a risk expressively excluded in the coverage of the policy?" *Page 195
The question is properly made by Exceptions 1, 2 and 3, which impute error to the lower Court for failure to grant appellant's motion for a directed verdict in its favor upon the ground that the evidence was reasonably susceptible of only one inference — suicide.
Under all of the evidence in the record I am unable to bring myself to the conclusion that the only reasonable inference to be drawn is that the insured did in fact intentionally shoot himself, this largely because of the failure to show any suicidal tendency, motive or inducing circumstances, together with the fact that he had a new pistol, was sitting alone and "killing time" under circumstances favorable for his "pranking" therewith. In this connection I think that I can do no better than to quote from the record the words of the able and long-experienced trial Judge in his refusal of defendant's motion for the direction of verdict made at the close of the testimony: "The Court: I am going to overrule the motion for a nonsuit or directed verdict, either one or both. Not only must it be proven that it was self-destruction, but that it was intentional self-destruction. You know of people that project with a pistol, may stick it against his head, projecting around, and not intend to kill himself. A man has got to intentionally kill himself. He may have pulled the trigger, I don't know, that is for the jury, may have pulled the trigger not intending to pull the trigger, that is not suicide."
I reach this conclusion of agreement with the Court below without conscious influence of the inference against suicide; but under the rule of the majority of the decisions, above adverted to at length, that the jury may in reaching a verdict consider the general probability against suicide, as they were instructed in this case at the instance of appellant, I know of no valid reason why the Court should not similarly consider it on motions for nonsuit and directed verdict. Indeed, it logically must where such consideration is necessary to a decision. *Page 196
This disposes of the exceptions, all of which I think should be overruled, and the judgment below affirmed.