Liberty National Life Insurance v. Power

Bell, Presiding Judge.

The exception to the judgment of the trial court denying the defendant’s motion for judgment notwithstanding the verdict raises the question as to whether the evidence demanded a verdict for the defendant. If the evidence demanded a finding that the cause of the death of the deceased insured was suicide, the clear exclusionary provisions *463of the policy would require a verdict for the defendant. Thus, the issue before us on the motion for judgment n.o.v. is whether the evidence demanded a finding of death by suicide.

From the plethora of cases decided by our appellate courts on the issue of suicide, the following rules of law have emerged:

(1) All that is required to raise the presumption against suicide is to show the fact of death of a human being. The presumption is not created by proof of other facts but arises automatically and immediately upon the demise of a person. The law recognizes the presumption against suicide “as arising out of the instincts of nature, one of which is the love of life.” Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 802 (12 SE 18).

(2) The presumption should not be confused with the proof of the means producing death such as proof that death occurred by “violent,” “external,” or “accidental” means or elements of that nature. While proof of the means producing death is usually necessary in order to bring the death within the coverage of the contractual term of an insurance policy, Travelers Ins. Co. v. Wyness, 107 Ga. 584, 587 (2) (34 SE 113), proof of the means is not necessary in order to create the presumption. See (1) above.

(3) The presumption is a presumption of fact. It is not a presumption of law. Templeton v. Kennesaw Life &c. Ins. Co., 216 Ga. 770, 773 (119 SE2d 549).

(4) As a presumption of fact, the presumption is subject to total elimination by uncontradicted evidence, either direct or circumstantial, that the death was caused by suicide. In that status a verdict is demanded that death occurred by suicide. On proper motion, a verdict should be directed accordingly. Gem City Life Ins. Co. v. Stripling, 176 Ga. 288 (168 SE 20); Hodnett v. Aetna Life Ins. Co., 17 Ga. App. 538 (87 SE 813). Although the Gem City opinion written by Justice R. C. Bell was not accorded a full bench concurrence and thus is not binding on the Supreme Court, it is nevertheless binding on the Court of Appeals and all other inferior tribunals. Furthermore, the opinion delivered in the year 1932 stands to this date unrefuted and unoverruled.

(5) Where there is direct or circumstantial evidence, either or *464both on each side in any combination, showing or tending to show respectively that death was or was not produced by suicide, the presumption against suicide is not eliminated and a jury question is presented. Belch v. Gulf Life Ins. Co., 219 Ga. 823, 826 (136 SE2d 351). All civil cases can be solved by circumstantial as well as by direct evidence. A preponderance of evidence is all that is required. It makes no difference whether the preponderance is the result of one or the other kind of evidence, a union of both, or one opposed to the other. Where the preponderance lies is a jury question and their determination of that question is decisive of the case. Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 803, supra. But even so, since the conflicting evidence as to the cause of death leaves the presumption against suicide extant, the jury, if in doubt as to where the preponderance lies, could give to the presumption sufficient weight to unbalance the evidence in favor of a verdict against suicide. The mere existence of the presumption would support, but would not demand, a verdict that death was not suicidal. It is in this sense, and in this sense alone, that Templeton, supra, held that the presumption disappeared only in the jury room and that Belch, supra, held that the presumption could have the effect of evidence. In that sense both Templeton and Belch stand for the proposition that where there is no evidence, either direct or circumstantial, tending to show that death was a result of suicide, a verdict is demanded, that the death was not suicidal.

Eor an excellent discussion of the confusion and anomalies existing in the several jurisdictions regarding the presumption against suicide see White, Presumptions in Violent Death Cases, American Bar Association Section of Insurance, Negligence and Compensation Law (1960), pp. 252-264.

The query now is whether the evidence in this case demands a finding that the death of the insured resulted from an act on his part of intentional self-destruction. If so then all of the points of law numerically listed above in Division 1 of the opinion, except that listed in item 4, disappear and vanish from consideration as they have been eliminated from the case.

The young lady who was with the insured when the death occurred and who was an eyewitness to the event testified: “So *465then he said if I didn’t [marry him] he was going to shoot himself.” No more positive or certain declaration of intention on the part of the insured could have been made. Following that he produced the loaded pistol, put it to his head and told the young lady that he was going to count five and if she did not, within that interval, agree to marry him he would shoot himself. Again, there was a positive declaration of intention— both as to the act and its result. He tormented her by clicking his fingernail on the trigger, saying “Now just listen to that;— when my finger touches the trigger it’s going off.” He counted slowly to five, relented and told the young lady “I’m going to give you one more chance. I’m going to count to three.” He counted to two and after that “the gun went off.”

When the deceased placed the gun to his head asserting that he would shoot himself and the gun was fired, it cannot be disputed that the resulting death was foreseen and expected and the natural and probable consequence of his act. “Where one places a loaded pistol to his head and voluntarily pulls the trigger, knowing the gun to be loaded and lethal, nothing more appearing, it is unquestionably no accident that his action results in his injury or death, nor can his death or injury be said to have been effected by accidental means.” Thompson v. Prudential Ins. Co. of America, 84 Ga. App. 214, 219 (66 SE2d 119).

“There being no conflict in the evidence as to the physical facts connected with the death of the insured, and these facts, with all reasonable deductions and inferences therefrom, overcoming the presumption . . . that he did not kill himself, or that his death was accidental, and demanding a finding that he came to his death by his own hand and intentionally” and the accident policy sued on containing the special provision that the policy does not provide any benefit on account of any loss which results from self-destruction, a verdict was demanded for the defendant. Hodnett v. Aetna Life Ins. Co., 17 Ga. App. 538, supra; New York Life Ins. Co. v. King, 28 Ga. App. 607 (112 SE 383); Supreme Forest Woodmen Circle v. Newsome, 63 Ga. App. 550, 565 (2) (11 SE2d 480); Boswell v. Gulf life Ins. Co. (5th Cir.), 227 F2d 578.

*466The trial court erred in denying the defendant’s motion for judgment notwithstanding the verdict.

The judgment is reversed with direction that final judgment be entered in the case in favor of the defendant.

Hall, Eberhardt and Bussell, JJ., concur. Frankum, J., concurs in the judgment only. Felton, C. J., Nichols, P. J., Jordan and Pannell, JJ., dissent.