I dissent from the judgment on the main bill of exceptions. There was no witness to the actual homicide. The defendant, in seeking to carry the burden and overcome and disprove the legal presumption in favor of accident, had necessarily to rely upon proof as to the surrounding facts and circumstances. In the trial of the case in the court below it was incumbent upon the defendant, in thus seeking to carry the burden by circumstantial evidence, to submit testimony of such weight and probative value as could furnish “scope for legitimate reasoning by the jury,” in order to sustain its defense, and the evidence thus submitted must also have preponderated in favor of its suicide theory rather than to any other reasonable hypothesis. Thus, while I agree with almost every proposition of law laid down by *615my more learned colleagues, I cannot quite accept the reasoning contained in the majority opinion, wherein it is stated that, as against the legal presumption (which is referred to as a mere conjecture), “the slightest evidence of physical facts becomes strong, even conclusive.” This presumption, solemnly established by the law, is not, as I understand it, a mere technical, arbitrary guess of the law, but is based upon the universal human instinct of self-preservation , and does not instantly give way to any sort of proved circumstances, however slightly they may suggest or however remotely they may tend to a contrary conclusion. The presumption resting where it does, and the burden of proof being therefore upon the defendant, the rules laid down by this court in Georgia Ry. & Electric Co. v. Harris, 1 Ga. App. 714 (57 S. E. 1076), appear to be entirely applicable. It was there held that “ Where a plaintiff in a civil case supports his action solely by circumstantial evidence, before he is entitled to have a .verdict in his favor, the testimony must be such as to reasonably establish the theory relied upon, and to preponderate to that theory, rather than to any other reasonable hypothesis. While in such cases the sufficiency of the evidence is for the jury, yet before there is, in legal contemplation, any evidence for their consideration, the circumstances shown must in some appreciable degree tend to establish the conclusion claimed. A mere scintilla of inconclusive circumstances giving no scope for legitimate reasoning by the jury does not carry the burden of proof.” In the decision Judge Powell speaking for the court said: “ When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a jury’s decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent conclusions. The established fundamental rules applicable to circumstantial evidence are the same in civil as in criminal trials. In both cases it is required that the circumstances relied upon be not only consistent with the conclusion sought to be established, but also inconsistent with every other reasonable hypothesis. In civil cases, this consistency with the one and inconsistency with the other is required to be established only by a mere preponderance; in criminal eases, to the exclusion of reasonable doubt.”
*616It is thus the opinion of the writer that, in a ease where circumstantial evidence is relied on to overcome the presumption as legally laid down and established, the presumption is not only real, but becomes an important thing. In such a case, not only, as in all cases, might it be sufficient to throw the scale where the preponderance of evidence could not be determined, but in a case such as this it may control the verdict, even though he who carries the burden may have on his side whatever preponderance of evidence there may be, provided the circumstances are so slight and inconclusive that they cannot, in the opinion of the jury, be taken as sufficient to reasonably establish the conclusion sought to be sustained. Whether they are sufficient for that purpose is ordinarily a question for the jury. It is only when they manifestly fail to throw any appreciable light upon the controversy, or when the facts, with all reasonable deductions therefrom, absolutely demand and require one particular inference and no other, that this court can interfere.
This discussion may be beside the mark, however, so far as the merits of this particular case'are concerned, since the writer does not in any wise argue or contend that the evidence offered by the defendant was inherently insufficient to have authorized the jury to find against the presumption and in its favor. The jury, however, have in fact found in favor of the plaintiff, and the trial judge having approved the verdict, the question before this court is not whether the defendant’s evidence was sufficient to reasonably establish the theory relied upon by it, or whether it preponderated or even very strongly preponderated in its favor, but the question is whether the facts and circumstances proved, with all reasonable deductions and inferences therefrom, absolutely demand a finding against the presumption and in favor of the defendant’s plea of suicide. It is needless to stress the fundamental and well-recognized proposition, which has so often been announced, that “This court, by the constitutional amendment creating it, is limited in jurisdiction to the correction of errors of law alone, and therefore has no power to grant a new trial on the ground that the verdict is strongly contrary to the weight of the evidence, if there is any evidence at all to support it.” Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875). The Supreme Court speaking through Mr. Justice Adams, in the case of Western & Atlantic R. *617Co. v. Hunt, 116 Ga. 448 (42 S. E. 785), used tbe following language: “ We fully recognize that questions of fact are for the jury, and that their discretion a's to the facts is a wide one. We believe, also, that they are better judges’ of the facts than are courts, and we have great respect for their verdicts. They are often affirmed in cases where it seems clear to the members of the appellate court that if they had been in the jury-box they would have rendered a different verdict. We recognize, also, that the discretion to set aside a verdict on the ground that it is strongly and decidedly against the weight of the evidence is reposed by law in the presiding judge, whose opportunities for determining this question are necessarily very much better than those of this court.” I differ with my colleagues in this case because I cannot bring myself to the conclusion arrived at by them that the facts as shown absolutely demand the inference of suicide, and are altogether inconsistent with any other reasonable hypothesis.
Self-destruction, both accidental and intentional, is common enough. Strange, mysterious, and altogether unexplainable are the mental processes which ofttimes’ induce both the one and the other. The loaded weapon carelessly dropped or handled, and the “ pistol that wasn’t loaded,” have claimed their thousands. 1 While suicides, when taken in the aggregate, are not rare, they involve a breaking down of the strongest and most elemental human instinct, supported as it is by all the higher moral perceptions. Man’s impulse is to “ carry on,” and his greatest strength seems sometimes to lie in his capacity to endure. Generally, if indeed it be not always true, the mind must first break down ere he will consent to give up. In the instant case there would seem to be no question as to actual fraud. The policy had been in force about twenty-three and a half months. It could hardly be supposed that it was taken out with intent to defraud. If such had been the purpose of the insured, he had only to wait two weeks longer, when under its own terms the policy would have become incontestable. Thus, there is lacking what might have been argued as the chief and strongest motive for suicide. It is in fact an argument against the theory of suicide that the insured did not wait the few remaining days when the policy by its terms would have been payable on account of death from such cause. The motive actually relied on by the defendant, while furnishing a proper ground of *618argument before the jury, is not very strong or convincing. The evidence is that the deceased had been positively assured by his physician that so far as could be -told by physical examination he was completely cured of the malady with which he had been afflicted. Tie was clinically sound. He was told, however, that since one could not be too sure in such a case, it would'be advisable for him to take the blood test. This sound advice of a conscientious physician with reference to a disease which he believed had been eradicated does not suggest suicidal motives of any great strength. It was mere argument, which could properly be considered and weighed by the jury for the purpose for which it was offered.
Before entering upon a discussion of the testimony relative to the location of the wound, which in my opinion constitutes practically the entire strength of the defendant’s case, let us consider the reasonableness of its theory of suicide as tested in the light of common knowledge and human experience. Did the deceased, if in contemplation of and preparation for suicide, conduct himself in that guilty, self-conscious, and secretive manner which human experience shows may have been reasonably expected ? We do not find him behind locked doors leaving to a world he could not face the almost inevitable confession. When last seen he was seated with his feet on the steps of his front porch. The pistol was in no wise concealed, but was lying openly beside him on the floor. To shoot himself while in this position, he would, as he did, necessarily have to fall headlong, face forward down the steps, and roll out into the yard where his little boy was playing. All of these circumstances seem unnatural, but it is especially hard to conceive that the harrowing act could have been intentionally committed in the very presence of his little son. As a suicide, it s.eems utterly unreasonable and contrary to all human experience.
But does the location of the wound in the temple, when taken with the testimony as to powder marks, prove the intent and dispose of the presumption, however contrary to nature it may seem ? The evidence as to powder marks is at best extremely vague and altogether indefinite. It rests solely upon the testimony of the little son and of another witness who arrived on the scene after the homicide, but it will be especially noted that neither of the two doctors who examined the wound was able to say that any powder marks or burns existed. If the pistol had in fact been placed very *619near or directly against the temple when the shot was fired, is it possible to conceive that either one of these physicians could by any possibility have failed to note powder marks and burns ? And now, as to the location of the wound, which as already stated constitutes the strongest and, as I see it, about the only evidence for the theory of the defendant. The doctors testified that the direction of the wound was not probed, but that it entered about the temple. The strength of this case is very different from that decided by this court in Hodnett v. Ætna Life Insurance Co., 17 Ga. App. 538 (87 S. E. 813), from which the syllabus has been adopted. There the muzzle of the pistol had been placed inside the mouth at the time it was fired. There is a mountain of difference here. If the deceased, while sitting on the porch, had dropped the pistol on the floor or down the steps by his side, he almost inevitably would have involuntarily and instantly turned his head over toward the point at which it would fall. If this were done, the wound caused by the explosion would naturally be found on the temple. Nor is it unreasonable to think that some slight powder marks might have thus resulted, but not of a kind and character such as must have been noted by the physicians had the pistol been held close to the temple. In furtherance of the theory that the pistol was not held to the temple at the time of its discharge, the little son testified that he looked up at the sound of the shot, and although he saw his father fall forward down the steps, he did not then see the pistol drop or fall. While I do not contend that the circumstances are such as to clearly indicate that the homicide was accidental, neither do I think that they indicated with any sort of clearness the contrary supposition of suicide. My dissent is based, however, upon the rule of law that before the approved verdict can be overturned by this court, the proved facts and circumstances must not only be sufficient to authorize a finding contrary to the verdict rendered, not only must they clearly and strongly preponderate to such theory, but they must absolutely demand it, and must absolutely forbid, as a matter of law, any other reasonable inference. It is my opinion that the verdict of the jury as approved by the trial judge should not be set aside on the ground that the proved facts and circumstances, with all reasonable deductions therefrom, absolutely demand a finding in favor of the defendant’s theory of suicide, and absolutely forbid as a matter of law the theory of accidental cause.