INDUSTRIAL COM'N OF COLO. ST. COMP. INS. F. v. Peterson , 151 Colo. 289 ( 1962 )

Mr. Justice McWilliams

dissenting:

I must respectfully dissent.

This is a close case on the question of how much evidence it takes to overcome the presumption against suicide. The fact that the case is characterized as “close,” however, does not mean that the finding of the Commission that Peterson committed suicide is necessarily to be approved. Rather, it makes our task all the more delicate and difficult.

In my judgment the majority has fallen into the same error as did the Commission, namely, it has failed to give proper recognition to the long-standing presumption against suicide. In the case of a violent, but non-homicidal, death, the law presumes it not to be suicide, and supposes such to have been an accident. This presumption is admittedly not conclusive, but is rebuttable. Just what is the quantum of evidence necessary to rebut and overcome the presumption against suicide? The authorities agree that suicide need not be established “beyond a reasonable doubt.” But it is also agreed that it is something more than a mere “preponderance of the evidence.” The quantum of evidence legally sufficient to overcome the presumption against suicide has been variously described as “substantial,” “clear,” and “positive,” and, conversely, it has been said that a finding of suicide cannot rest on “guess,” “speculation,” “supposition,” or “conjecture.” See 58 Am. Jur., p. 857, and 100 C.J.S., p. 768. Particularly is this true, where, as here, all of the evidence as to suicide is circumstantial. So in 36 A.L.R., p. 398, it was said:

“The concensus of opinion, however, is that when circumstantial evidence is relied upon to establish suicide, the party striving to prove same must prove it by facts excluding every reasonable hypothesis of natural or accidental death.”

Before briefly setting forth my analysis of the evidence surrounding Peterson’s death, it is well to keep in mind the rule laid down in Ross-Lewin v. Germania Life Ins. Co., 20 Colo. App. 262, 78 Pac. 305:

“The presumptions are against suicide; and if a death which may be explained on the theory of suicide, is also explainable on another theory which excludes the supposition of self-murder, in the absence of evidence to the contrary, the law will adopt the latter hypothesis.”

Is the circumstantial evidence in the instant case of sufficient quality and quantity to overcome the presumption against suicide? Is the evidence of suicide clear and convincing? I hold that as a matter of law it is not. The majority holds that it is. Therein lies our area of disagreement.

The majority opines that Peterson “could not help but know the physical effects of being in a closed room with two car motors running.” (Emphasis supplied.) In this respect it should be noted that the case is not one where an automobile with its motor running has been found in some odd or strange place. Rather, we are concerned with a filling station which has a “3 bay” garage attached. I remain singularly unconvinced that the mere fact that an automobile is found with its motor running in a closed, commercial garage in cold weather is clear and convincing proof that an attendant employed in servicing such automobile permitted its motor to run with suicidal intent. The fact that two automobiles had their motors running does not alter my view. Indeed, Peterson’s supervisor was actually unable to detect that two were running until he turned the one off. In this connection, the majority declines to recognize that there was a very logical reason why at least one of the cars had its motor running. The evidence was undisputed that to properly test a radiator for anti-freeze it was necessary to run the motor to heat the cooling fluid to a proper temperature for testing, and one of the cars was in the garage for the purpose of adding anti-freeze.

The two doors of the station were locked, ergo, says the majority, suicidal intent. This is deemed to be logical and rational even though it was undisputably established that Peterson, who worked the graveyard shift by himself, was apprehensive of a burglary or robbery and on the very night in question was actually carrying in his hip pocket a wrench to protect himself in the event of a surprise attack.

Continuing, the majority states, “The points as to domestic problems and military service can as logically point to tensions and a possible desire to commit suicide as to bright hopes for the future,” (Emphasis supplied.) In my view there is absolutely nothing in the record to justify the inference that Peterson had personal pr óbleme of such complexity and enormity as to drive him to intentional self-destruction. In fact, the evidence on this issue is to the contrary/

Also, the undisputed, evidence before, the Commission shows that at the precise moment Peterson lost consciousness he was in the act of vacuuming the interior of an automobile. Just how this rationally fits into a suicidal pattern has not yet been explained.

In short, the evidence of suicide in my judgment is at most speculative, and certainly not clear and convincing. The finding of the Commission is based on supposition, surmise and guess work. The evidence being as compatible with a hypothesis of accident as suicide, the presumption against suicide carries the day.

I am authorized to say that Mr. .Justice Frantz joins in this dissent.