Tower v. Assurance Soc. , 125 W. Va. 563 ( 1943 )

I deferentially dissent from the majority opinion. The controlling principle in this action relates to the presumption of accident as opposed to that of suicide in case of a violent, unexplained death. There is a singular lack of precision and unanimity in the treatment of this rule by the courts of this country. The authorities have variously referred to it as a rebuttable presumption of law, as a presumption of fact, and as a permissible inference. To my mind it is a rebuttable presumption of law arising from the common experience of mankind and from the circumstances usually attending such deaths. Ryan v. Metropolitan Life Ins. Co., 206 Minn. 562,289 N.W. 557. See 20 Am. Jur., Title Evidence, Section 162; Jones on Evidence Civil Cases, 4th Ed., page 16; 5 Wigmore on Evidence, 2d Ed., Section 2191 et seq.; Burrill on Circumstantial Evidence, pages 11-60. The presumption is accorded recognition by all jurisdictions in the United States, but there is a division of authority as to the effect and character of such presumption.

This Court adheres to the majority rule holding that when death occurs by violent, external and unexplained means, accident is presumed, but when the cause of death is shown the presumption is no longer effective. Martin v. Insurance Co.,106 W. Va. 533, 146 S.E. 53, (qualified in Bank v. InsuranceCo., 121 W. Va. 152, 2 S.E.2d 256). The case of McDaniel v.Insurance Co., 119 W. Va. 650, 195 S.E. 597, states the rule as follows: "While there is a presumption of law against suicide, such presumption is not evidence, and a showing of facts or circumstances which would warrant a jury in finding that death resulted from a suicidal act overcomes such presumption, and requires a finding in the case by a jury or court, independently thereof, upon the evidence produced at the trial". See Lambert v. Insurance Co., 123 W. Va. 547,117 S.E.2d 628. The holding of this Court is supported by cases from other jurisdictions. New York Life Ins. Co. v. Gamer,303 U.S. 161, 58 S. Ct. 500, 82 L. Ed. 726, 114 A.L.R. 1218. In theGamer case, the Court indicated that the evidence presented a question for jury determination. McMillan v. General AmericanLife Ins. Co., 194 S.C. 146, 9 S.E.2d 562; Gulf Life Ins.Co. v. Weathersbee, 126 Fla. 568, 172 So. 235; Falkinburg v.Inter-State Business Men's Accident Co., 132 Neb. 670,272 N.W. 924; Stuckum v. Metropolitan Life Ins. Co., 283 Mich. 297,277 N.W. 891. This presumption certainly has some function in actions of this character. It is said to be "derived from the common experience of mankind". In the case of Southland LifeIns. Co. v. Brown (Tex.Civ.App.), 121 S.W.2d 653, it is held that the presumption against suicide is very strong. In cases of this kind circumstantial evidence is usually the only kind of evidence available. If direct evidence is adduced showing either accident or suicide the death is explained, and the presumption here under consideration has no place in the consideration of the controversy and affords no assistance in reaching a conclusion. The question naturally arises how much evidence is required to render ineffectual this presumption. Where the evidence relied upon to eliminate the presumption is circumstantial, the circumstances established must exclude every reasonable hypothesis consistent with death from accident.Goodbar v. Life Ins. Co., 89 W. Va. 221, 108 S.E. 896; McDaniel v. Metropolitan Life Ins. Co., supra; McMillan v. GeneralAmerican Life Ins. Co., supra; Edwards v. Business Men'sAssurance Co. (Mo.), 168 S.W.2d 82.

It is also to be borne in mind that where an insurance policy covers death by accident only, the burden of proving accidental death is on the plaintiff; but where the policy insures against death from any cause except suicide, the burden is on the insurer to prove the exception contained in the policy.Lambert v. Insurance Co., supra; Gray v. Metropolitan Life Ins.Co., 308 Ill. App. 1, 31 N.E.2d 85. But the burden so imposed on the insurer does not relieve the plaintiff in an action on an insurance policy from proving facts and circumstances from which accidental death may be inferred.

The presumption of law against suicide hereinabove mentioned is a rebuttable presumption. Gray v. Metropolitan Life Ins.Co., supra. Such presumption has been so considered by this Court, as well as the courts following the majority rule. So far as I have been able to ascertain there is no holding in this jurisdiction as to the amount of evidence necessary to render the presumption ineffectual. It seems reasonable that where there is no competent evidence to show death by suicide in cases where violent death is unexplained, that the presumption remains in effect and controls the result. GulfLife Insurance Co. v. Weathersbee, supra. A prima facie case is made upon the showing of death by violent and external means.Dimmer v. Mutual Life Ins. Co. of N.Y., 287 Mich. 168,283 N.W. 16. Where the issue of fact is suicide or accident and the means of death is not explained, I think that the evidence which destroys the presumption must be such as to exclude every reasonable explanation of death except suicide. Of course, where it is reasonably probable from the evidence that suicide was the cause of death, and reason and common sense leave no room for a different contention, it becomes a matter of law for the court. On the contrary, where the evidence as to suicide is conflicting and purely circumstantial or inconclusive, and, there is a reasonable basis for difference of opinion, the case should be submitted to a jury. Cooley's Briefs on Insurance, 2d Ed., Vol. 6, 5478, 5479; Couch on Insurance, Vol. 6, Section 1262r.

In this case it is not disputed that Robert N. Tower came to his death by violent and external means. The majority opinion holds that the facts tend to show suicide. A careful analysis wholly fails to indicate self-destruction. The position in which a human body is found after a gun shot wound does not with certainty indicate the manner of inflicting the same, nor the existence of intent, such positions being as varied as the occurrences of which they relate.

The science of ballistics gives no accurate rule for calculating the deflection or elevation of a bullet or shot striking bone, wood or other hard substances. The course of the projectile may be changed and, therefore, is an inaccurate indication as circumstantial proof that the firearm was in a certain position when discharged. The course of an unimpeded projectile can be gauged with reasonable accuracy, but where it comes in contact with bone, as here, such course is not a reliable fact from which to draw a controlling inference as to the position in which the gun was held. The fact that the muzzle of the gun was apparently inside Tower's shirt pocket when it was discharged may indicate self-destruction, but that is the only circumstance from which the inference is drawn in the majority opinion that the gun was intentionally placed therein by Tower just before the fatal shot was fired. A reasonable explanation of this circumstance is that when Tower reached toward his hunting coat, the muzzle of the gun, having a polychoke and a front sight or bead thereon, may have accidentally caught the muzzle in his pocket, which was of the "bellows" type. There is nothing in this record on which a conclusion of suicide may be based other than the conjectural fact just mentioned. I am therefore convinced that the factual premise herein was such as to show death by violent external means; that there is no reasonable explanation of Tower's death other than accident; and that the presumption against suicide remained effective throughout the trial.

Litigants should not be deprived of their constitutional right of trial by jury where the facts are in dispute or on light and transient grounds, especially when such grounds are supported by inconclusive and conjectural facts and circumstances.

The second point of the syllabus of the majority opinion appears to be inappropriate. To me there was no evidence from which the jury could infer that Tower came to his death from a self-inflicted wound, and the facts, as shown by the plaintiff, aided by the presumption of law against suicide, were sufficient to take the case to the jury.

It is also said in the majority opinion that the burden is upon the losing party to show that the trial court had erroneously appraised the evidence in directing a verdict for the successful litigant. It is somewhat difficult for me to understand how the litigant can carry a burden such as is imposed by the majority opinion. A showing generally relates to factual rather than legal matters. A trial court on motion to strike the evidence and direct a verdict considers the facts as a totality giving to the party who has introduced the evidence the benefit of every fact proved, as well as all reasonable inferences to be drawn therefrom. The action of the trial judge in directing a verdict is based on a legal rather than on a factual concept. Presumably, it is meant that the litigants should advance arguments or call attention to binding precedents. This would not be a showing in any sense. It would be an argumentative development of principles of law in support of the position taken by a party to an action, such principles being logically applicable to the matter then under inquiry.

Relying upon what is shown by the record in this case and without indulgence in speculation as to what was apparent in the trial court and did not appear in the printed record, I am of the opinion that the question of fact here presented, to-wit, whether Tower came to his death by accident or suicide, was a question for jury determination upon the facts which were introduced in evidence, together with such reasonable inferences as the jury was authorized to consider from the facts so proved and the legal presumption against suicide, if such legal presumption remained effective after introduction of defendant's evidence. In my opinion the trial court's action in striking the evidence and directing a verdict was error, and I would reverse the judgment of the Circuit Court of Roane County.

I am authorized to say that Judge Riley joins in this dissent.