The following opinion on rehearing was filed April 5, 1905. Judgment of reversal vacated. Judgment of district court affirmed:
Barnes, J.This case is before us a second time for our consideration. In an opinion, ante, p. 860, written by Mr. Commissioner Oldham, and approved by the court, it ivas held that the trial court erred in directing a verdict for the defendant below. A rehearing was allowed,, the case has *870been reargued, and ihe same question is again presented for our consideration. Our former opinion contains a full and complete statement of the pleadings, from which it appears that the defense of suicide was the only issue tendered for trial in the court below. On that question the burden of proof was on the defendant. Modern Woodmen of America v. Kozak, 63 Neb. 146; Travelers Ins. Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. Rep. 1360, 32 L. ed. 308; Schultz v. Insurance Co., 40 Ohio St. 217, 48 Am. Rep. 676. Examining the record, in view of this rule, we find that it discloses that one George S. Hardinger joined the association on the 8th day of April, 1899, and that at a later date a beneficiary certificate was issued to him in favor of his minor son; that he was found dead, or in a dying condition, on Wooded Island, in Jackson Park, in the city of Chicago, on the evening of April 5, 1902. On the trial in the district court it Avas shoAAm by the association, in support of its defense, that the deceased was in charge of a bank in Overton, Nebraska, from 1895 to 1899; that early in the latter year he became a defaulter for something like $30,000, and Avas discharged from his position for that reason; that he never made his shortage good, but Avas not prosecuted criminally, nor was he unduly pressed for the payment of his shortage, because of his relationship to the owners of the bank; that later on in that year he moved to Chicago, rented rooms in a flat at number 6,448 Armour Avenue, in Enghuvood, a suburb of that city, and established his residence there; that after he lost his position with the bank he Avas despondent and troubled about his business matters; that in June, 1901, Avhile his wife was visiting her parents at Tin ley Park, about 25 miles from Chicago, and while he Avas alone in his house, he was overcome by escaping gas. He was found by the postman, who called a physician, and he was resuscitated. He was ill from the effects of his asphyxiation for a considerable time; was treated by one Dr. Lovewell, and it appears he recovered from that illness in about six weeks.- When asked by the doctor on one oe*871casion as to how the matter occurred, he refused to make any explanation of it; that when the same question was asked him by his wife, he informed her he did not know anything about it. From that time until his death it appears that he was ill at times; that in August, 1901, he was troubled with hallucinations; and believed that his child had been taken away. He thereupon left home in search of it, being gone about two days. It was also shown that it was his habit to go to the city every morning to amuse himself, and remain there until time for the evening meal; that he was without employment, but had, in a great measure, recovered his physical health at the time of his death. His condition can best be explained by quoting the evidence of his wife:
Q. After he was sick in June he never went to work again as bookkeeper, did he?
A. He did not.
Q. And after he was sick in June he was confined to the house for some time, wasn’t he?
A. A few days.
Q. And he was under the care of the doctor for some time, was he not?
A. In June?
Q. Yes, and until along in October, he was still doctoring with Dr. Lovewell, wasn’t he?
A. I don’t know; I don’t remember.
Q. And in August he was under the delusion that his son was stolen?
A. At that time, yes.
Q. And from that time on did he go down town every day?
A. He was in the house about a week until he was well again, and he went .down town every day.
Q. That was after he was wandering around?
A. Yes.
Q. Then he would go down town?
• A. Yes.
Q. Do you know what he went down for?
*872A. Just went down for pastime.
Q. Went down for pastime?
A. That’s what he said.
Q. Now you say after that time in August, when he was away a day and a half, after he got well he was all right mentally. Do you mean that?
A. He was all right, hut he was sick.
Q. Well mentally?
A. Well, I think he was at times.
Q. You think he was at times?
A. Most of the time.
Q. A part of the time he was mentally unbalanced?
A. Well, I wouldn’t call it unbalanced.
Q. Under depression?
A. Well, he was dizzy.
Q. And along toward evening he would have fits of melancholia, or depression?
A. No, he was the same all the time, but suffered from insomnia; couldn’t sleep.
It further appears that on the morning of April 5,1902, Hardinger left his house and went to the city as usual; that at about seven o’clock that evening two policemen, who were on duty on what is called Wooded Island, in Jackson Park, heard a shot fired at the distance of from 100 to 200 yards from them, and hurried immediately to the place from whence the sound came to ascertain its cause. They found Hardinger lying on his back by the side of a log; his blood and brain oozing from a wound inflicted by a pistol shot on the right temple at the edge of the hair line in front of the ear; the wound was blackened around its edge where the bullet entered; a revolver lay at his right hand with three cartridges in its chamber, one of which had been recently discharged, and the smell of powder smoke still lingered about the place. A careful examination disclosed no footprints or traces of the presence of any other human being near the body, or in that immediate vicinity; his clothing was undisturbed; his watch, ring, purse and other effects were found on *873his person, and in his vest pocket was a memorandum book in which his name and address were written. This memorandum book liad written in pencil with his own hand upon the first leaf or page, lengthwise thereof, the. words : “There is nothing to tell; simply weary.” The book contained no other writing of any kind, and Hardinger died without regaining consciousness. The testimony also showed that no other person was present on that part of the island; that if there had been any other person in that vicinity the officers could have seen him.
With the foregoing facts established by the evidence the district court, on the motion of the defendant association, directed the jury to return a verdict in its favor, and the only question for our consideration is, was such direction error? It may be stated at the outset that self-destruction is not to be presumed. In other words, the presumption arising from the general conduct of mankind is that a sane person Avill not destroy his OAvn life. But this is a rebuttable presumption, and easily yields to physical facts clearly inconsistent with it. It is not proof, nor does it stand in the way of proof, and when sufficient evidence is introduced to overcome this legal presumption it disappears. On mature reflection we are of unanimous opinion that the proof in this casé clearly overthrows the presumption above mentioned, and excludes all probability of death by accident or by the hand of another. The undisputed facts and circumstances in this case lead naturally and rationally to but one inference, and that is that George S. Hardinger shot himself intentionally. It seems to us that no other fair, just or reasonable conclusion is possible. When the facts naturally and reasonably lead the mind to but one conclusion, there must be something in the circumstances, something someAvhere in the evidence, to suggest murder or accident. No circumstances can be pointed out consistent with the use of the Aveapon, for some unexplainable purpose, from which ac-dental shooting probably resulted. To indulge in such inference is to engage in fanciful conjecture. The basis of *874such a conclusion is not to be found in the evidence, but if it exists at all it is altogether outside of it, and is a guess, a surmise or a conjecture. No fact or circumstance can be pointed out in the evidence which indicates that the use made of the revolver by Hardinger was accidental; and there is nothing in the record from which a presumption of death by murder can be justified. There is no conflict in the evidence. It all points unmistakably and clearly to death by suicide. Any other conclusion would outrage all reason. And had the question been left to the jury, and had that body found otherwise, its finding would have been set aside as against the evidence. A verdict of the jury for the plaintiff in this case would have had no basis except mere conjecture. In such a case it is the duty of the court to treat the matter in question as one of law, and direct the proper verdict. Sovereign Camp of the Woodmen of the World v. Hruby, 70 Neb. 5.
The rule is well established that, if, from the undisputed facts, different minds may not honestly reach different conclusions without reasoning irrationally, it is not error for the trial court to withdraw the case from the consideration of the jury, and direct a verdict consistent with the facts. Knapp v. Jones, 50 Neb. 490; Shiverick v. Gunning Co., 58 Neb. 29. In this case different minds cannot arrive at different conclusions. The evidence points clearly and unequivocally to suicide. In order to reach any other conclusion one must go outside of the record and resort to mere speculation or conjecture. Our former opinion followed Modern Woodmen of America v. Kozak, 63 Neb. 146, which counsel for the plaintiff insist is in point and authority for our present decision. An examination of that case shows that nearly all the facts and circumstances tended strongly to prove that Kozak came to his death by his own hand. It was shown, however, beyond question, that the bullet which was taken from the wound in Kozak’s head, and which evidently caused his death, was several sizes smaller than the caliber of the revolver which was found near his body, and could not have been fired *875from that weapon. If such proof had been made in the case at bar, or if there was any competent evidence to dispute the testimony offered by the defendant in proof of its defense of suicide, an entirely different question would have been presented. In such a case the court should submit the question of fact to the jury; while in the case a.t bar there was no dispute as to the facts, and the whole matter was properly treated as a question of law.
We are now of opinion that the district court did not err in directing the jury to return a verdict for the defendant, and, for that reason, our former judgment is vacated and the judgment of the district court is in all things
Affirmed.