Lambert v. Ins. Co. , 123 W. Va. 547 ( 1941 )

With every deference, I do not regard the question of fact here involved as being doubtful enough to lead this Court into the intricacies involved in the holdings of the decided cases dealing with the question of suicide and the practical application of the generally upheld presumption against its occurrence. This Court, by virtue of the discussion of that presumption in the very thorough opinion of McDaniel v.Insurance Company, 119 W. Va. 650, 195 S.E. 597, has approved the view that it is a legal presumption operative only upon the trial judge, unless it may be said through him to operate indirectly upon the jury. Under that rule, it has no effect upon jury considerations, but it may control the determination of the trial judge in directing the jury's finding. See in addition, 9 Wigmore on Evidence (3rd Ed.), page 288, Par. 2491. As to presumptions as evidence, see the note in 95 A.L.R. 876, 887, and as to the specific presumption against suicide as evidence, see 103 A.L.R. 185.

It is quite likely, however, that a precise application of the presumption against suicide in this matter would still favor the plaintiff's position. Treating the presumption against suicide as a question of law that does not reach the jury and, therefore, in passing upon an issue of fact, cannot be accorded probative effect, we should not lose sight of the fact that the majority opinion here is not dealing with a quiescent presumption against suicide as with the case before the jury, but in holding that a verdict should have been directed in favor of the defendant, it is placing the case in a position where its decision is directly controlled by a legal finding and where, with the case away from the jury, the dormant presumption against suicide has its effectiveness revived. The majority says that the defendant is entitled to a verdict as a matter of law, and in arriving at that conclusion must find that defendant's proof clearly outweighs the presumption against suicide. The court's opinion is dealing with a finding of law by the court; not a finding of fact by the jury. I do not think that it is necessary to approach this matter from that angle, however. To the contrary, though theMartin case (106 W. Va. 533), hereinafter cited, indicates clearly that this Court does not adhere to it, I believe that the plaintiff here can even concede the principle spoken of in 8 Couch on Insurance, 7248, to the effect that in jurisdictions where the distinction is drawn between accident policies and life insurance policies to the end that in the former, as a part of the plaintiff's affirmative showing, it becomes necessary to negative suicide. In speaking of suicide and the circumstances under which its happening becomes a question of law for the court, and those under it must be submitted to the jury, 6 Couch on Insurance, 4660, has this to say: "Generally speaking, the rule is that if the evidence is so clear and convincing that it can be said that all reasonable men would draw the same conclusion therefrom, then the question is one for the court; in other words, where the evidence produced clearly overcomes the presumption against suicide, convincingly indicates suicide, and is inconsistent with any other hypothesis than that of self-destruction, the insurer is entitled to a directed verdict on the defense of suicide." As stating that a physical injury gives rise to the presumption of accident, and not to self-infliction nor to the act of a third person, see 5 Couch on Insurance, 3992.

The Martin case, as I read it, holds that upon a showing of violent death a prima facie presumption of accident arises. I see nothing in Beckley, etc., Bank v. Insurance Co., 121 W. Va. 152,2 S.E.2d 256, to change that rule, the difference between the two cases being that the latter held that the victim's beneficiary could not treat as accidental a death which was plainly shown to have resulted from resisting the victim's brutal assault, whereas the Martin case held that the showing that death resulted from self-defense did not overcome the presumption of accident. I quote the opinion in the Martin case:

"The plaintiff made out a prima facie case when she introduced proof establishing the death of Martin by external and violent means. 1 C. J., p. 495, sec. 278; Fidelity Casualty Co. v. Weise, 80 Ill. App.? 499; Whitlatch v. Fidelity Casualty Co., 24 N.Y.S. 537; note on page 919, Vol. 9, Ann. Cas.; Nerrow v. Pac. Mut. L. Ins. Co., 294 S.W. (Mo.) 97. The proof of death by such means raised a presumption that the insured's death was accidental, and this presumption was not destroyed by the fact that her evidence showed that Martin was 'killed' by Doctor Brannon. Gilkey v. Sovereign Camp of Woodmen of the World, 178 S.W. (Mo.) 875, 877. It then became incumbent upon the defendant insurance company to meet this prima facie case by affirmatively showing that the deceased came to his death as a result of a violation of law. Sovereign Camp of Woodmen of the World v. Jackson, 138 S.W. (Tex.) 1137; Gilkey v. Sovereign Camp of Woodmen of the World, supra; 14 R. C. L., sec. 599, p. 1437; Fidelity Casualty Co. v. Weise, supra; and authorities cited supra. Can it be said as a matter of law that under the evidence introduced in this case the defendant insurance company has carried that burden?"

When the presumption of accident arises upon the showing of violence where recovery is sought under the double indemnity clause of a life insurance policy, as in the Martin case, I see no reason for changing the rule when recovery is sought under an accident policy. Certainly death may be shown to have resulted from violent and accidental means without negativing suicide by actual proof to the satisfaction of the court, the added presumption against suicide calling upon the court to require the defendant to adduce proof of that fact in order to avoid a binding instruction on that question.

It seems to me quite apparent that this is the type of case that cannot be disposed of under general principles of law, the backbone of the matter being largely factual where the decided cases cannot be greatly helpful.

As illustrating the conclusive showing favoring the defendant that is required to establish a suicidal defense, see the cases cited in the annotation in 37 A.L.R. 171.

As holding, in a similar case where death was due to a gunshot, that the cause of death should properly be left to the jury, see New York Life Ins. Co. v. Gamer, 303 U.S. 161, 171,58 S.Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218.

In Goodbar v. Life Ins. Co., 89 W. Va. 221, 226,108 S.E. 896, 898, as to the attitude of this Court concerning proof of suicide, we had this to say: "The tenacity with which men cling to life is so great that suicide will not be presumed (?) unless the state of facts under which death occurred practically excludes every other reasonable hypothesis, and the court so instructed the jury in this case." (My question mark).

As establishing the rule in West Virginia that the plaintiff, in order to recover under the double indemnity provision of a life insurance policy for death resulting from external, violent and accidental means, is not required to negative the express exception of death resulting from a violation of the law, which is matter of defense to be alleged and shown by the defendant, see Martin v. Ins. Co., 106 W. Va. 533, 146 S.E. 53.

But as I have said, conceding that the presumption against suicide does not reach the jury and influence their finding of fact, and even granting that the plaintiff, seeking to recover on an accident policy, must negative suicide by its proof, I am still of the opinion that upon this record, a verdict for the plaintiff should not be disturbed as a matter of law. With the exception of evidence of an unaccounted for shortage, the testimony on the part of the insurer impresses me as being conjectural and far short of the direct or convincing circumstantial proof required to establish suicide. It is true that in some strange way the decedent might have contrived an unrevealed, ingenious manner of killing himself so that his high-power rifle would have been propped to be fired into his back eight inches below and to the right of the point that the bullet left his body after passing through his heart: he could have used the straight ramrod with no strings attached to it to press a piece of metal as small as the trigger, two feet or more behind him and out of his normal line of vision: he could have preferred death by suicide to explaining a shortage in that part of the bank's accounts of which he had charge. A finding of suicide on the part of the jury would have entailed those conclusions. A verdict based upon that finding would, perhaps, be maintainable. On the other hand, it is quite likely that the jury took the viewpoint that they were justified in concluding that whatever is not reasonably accounted for may be treated as having happened accidentally, and that being so, and it being apparent that the death of the insured was caused by violent and external means, good conscience required a verdict for the plaintiff.

I am strongly convinced that the circumstances indicating suicide, while likely of enough weight to prevent the presumption against it from resulting in a directed verdict for the plaintiff, fell far short of the clarity and preponderance which alone would justify a directed verdict for the defendant.

Judge Lovins authorizes me to say that he concurs in this opinion.