On Motion for Rehearing.
Bell, Judge.In her motion for rehearing the defendant in error vigorously protests that this court has patently confused evidence pointing “indifferently” to either accident or suicide with “no evidence” in stating in division 2 of the opinion that the correct rules “. . . to be gathered from the Georgia cases would authorize the trial judge to charge upon the presumption against suicide and in favor of accident only in the cases involving a defense of suicide . . . (b) where evidence is introduced which ‘points indifferently’ to either result which basically means no more than no evidence at all, in which event the presumption will again apply and would make out a prima facie case for the plaintiff.” This confusion, it is urged, is made obvious by the decision of the Supreme Court in Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 802 (12 S. E. 18).
Mr. Justice Bleckley, in delivering the opinion for the Supreme Court in the Sheppard case, at p. 802 (29), stated: “Where the fact of death is established, and the evidence points equally or indifferently to accident or suicide as the cause of it, the *894theory of accident rather than of suicide is to be adopted.” In New York Life Ins. Co. v. Ittner, 59 Ga. App. 89 (200 S. E. 522), beginning on page 93, this court considered the quoted statement from the Sheppard case exhaustively. Without repeating what was said in the Ittner case, we adopt it subject only to the exceptions noted in the main opinion here. Accordingly, we reassert that where there is evidence authorizing a finding that a particular person took his own life, a jury is not authorized to disregard this testimony by the carte blanche process of adding to whatever evidence there is that the person did not commit self-destruction the ex parte fact that people generally prefer to live rather than to die. But we do say that a jury, in connection with other facts tending to show that the person did not take his own life, may consider proved facts which show that the particular person involved had no apparent reason for taking his life and that he loved life and preferred to live rather than to die.
One other thing might be said with reference to the statement in the Sheppard case as applied to the contention of the defendant in error in her motion for a rehearing, and that is that if we were to construe the language to mean that the evidence points with equal consistency to two opposing conclusions, we would then run head-on into the rule of law that where such a situation exists the party having the burden of proof cannot prevail. We do not go this far. See Taylor v. State, 44 Ga. App. 387, 417 (161 S. E. 793) and the many subsequent civil cases following the principle.
Furthermore, in the Sheppard case the court was discussing the propriety of the denial of a nonsuit, and we are convinced that this court in the Ittner case correctly construed the statement in the Sheppard case, and there correctly stated the law with the exceptions which we have noted in this opinion.
The crux of the decision in this case is that upon the submission of evidence by the defendant which would authorize a finding of suicide, the presumption vanishes as a substantial matter which the jury may take into consideration or use as an aid in evaluating either the evidence of the defendant seeking to establish suicide or that of the plaintiff seeking to establish *895accident. It is in this sense only that the words, “vanishes” or “disappears,” are used throughout this opinion with relation to the presumption—with only one exception. This one exception is that the presumption is totally obliterated and vanishes completely where a plaintiff abandons the presumption by introducing additional evidence as to the cause of death other than the mere fact of death by violent and external means.
The respective motions for rehearing filed by the parties are denied.