Opinion
40895.
DECIDED MARCH 11, 1965 REHEARING DENIED APRIL 1, 1965.
Action on insurance policy. Fulton Civil Court. Before Judge Webb.
Smith, Ringel, Martin, Ansley Carr, H. A. Stephens, Jr., for plaintiff in error.
Robert Carpenter, Ferrin Y. Mathews, A. Tate Conyers, contra.
1. (1) All that is required to raise the presumption against suicide is to show the fact of death of a human being.
(2) While proof of the means producing death is usually necessary in order to bring the death within the coverage of the contractual terms of an insurance policy, proof of the means is not necessary in order to create the presumption.
(3) The presumption is one of fact and not of law.
(4) The presumption is subject to elimination by uncontradicted evidence, either direct or circumstantial, that the death was caused by suicide. In such a status, a verdict is demanded that death was suicidal.
(5) Where there is direct or circumstantial evidence, either or both 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.
2. The evidence in this case demanded a finding that the insured came to his death intentionally by his own hand. The exclusionary provisions of the accident policy precluding the payment of benefits under the policy where loss results from self-destruction, a verdict was demanded for the defendant.
DECIDED MARCH 11, 1965 — REHEARING DENIED APRIL 1, 1965.
This is an action upon an accident insurance policy brought by Lelia W. Power as the named beneficiary against Liberty National Life Insurance Company to recover benefits payable under the policy for the accidental death of the beneficiary's son, James Power, the named insured.
Upon trial of the case the insurer based its defense upon the theory that the insured's death was produced, not by accidental means as required by the policy, but by suicide. The jury returned a verdict for the plaintiff, and judgment was entered upon the verdict. The defendant excepts to the judgments of the trial court denying defendant's motion for judgment notwithstanding the verdict and overruling defendant's amended motion for new trial upon each and every ground of the motion.
Evidence adduced at the trial showed the following facts:
The insured, James Power, was a twenty-year-old "fun-loving" youth, a "big mixer" with a "happy-go-lucky" disposition. He had played on the Roswell High School football team for four years, and had been captain of the team one year. While in high school he had won prizes for his accomplishments in wood-working. After high school he attended North Georgia College for two quarters, then quit college and obtained employment. At the time of his death he had worked for the Regal Paper Company for about a year and a half. His parents and his superintendent in his work testified that he was interested in his work. His mother's testimony showed that he had an ambitious attitude toward his future, and the testimony of his superintendent showed that he had opportunity for advancement in his employment with Regal Paper Company. Shortly before his death he and his parents were making plans to build a basement and workshop for their home, and he had indicated that he planned to join the Masons when he became twenty-one. He had told his father that he expected to have to go into the Army and that he "wouldn't get married to no girl" until the completion of his military service.
James Power "dated" a certain girl on August 10, 1962, the first time, and thereafter on August 14, August 15, August 17, and August 19th. On August 19, they agreed to stop seeing each other, and did not meet again until August 31, the eve of James Power's death. The girl testified: "He was getting so serious — I mean he had mentioned the fact that he wanted me to marry him, and I hardly knew him and I just couldn't go along with it, and that was just it." During the brief time when they were seeing each other he had "tried to have sexual relations" with her. On the night of his death "he was again trying to make advances."
On August 31, James Power, his first cousin, and another young man drove in James' car to Norcross to see a football game between Roswell High School and Norcross High School, the first football game played that year by Roswell. Before meeting these other young men that evening, James had supper at home with his parents. At supper he was "jolly," and was "laughing, joking, carrying on." As he was leaving, he told his father that he would return home early that evening.
On their way to Norcross the three young men stopped and bought a half-pint of whiskey, from which they had "two to three" drinks each, finishing the bottle at the football game during half-time.
James had not been brooding or despondent in the days or weeks preceding this evening, and at the game he behaved normally. Against his expectations Roswell won the football game, and this result put him into a happy mood. After the game he went out onto the field to congratulate the players, "picking them up, sort of hugging them, shaked their hands, and all." On the way back to Roswell the three boys talked about the game, and James said that he would not miss any of the games.
Back in Roswell, they stopped at the filling station where James worked part-time and where the three had gathered earlier that evening for the trip to Norcross. James and his cousin left the third boy at the filling station, and went on to the Dixie Dairy Bar for something to eat. While James was at the Dairy Bar, the girl whom he had been dating came in with some other girls. As she came in, James accosted her and told her that he wanted to talk to her. She did not then observe that he had been drinking. Afterwards they mingled with the other patrons, and he ate "two or three Corn Dogs and Cokes and several different things."
At approximately 11:30 James, the girl, his cousin, and another young man, left the Dairy Bar in James' car. James "was cutting up. He was kidding or just carrying on normal conversation." He drove the latter boy home, then drove his cousin to his cousin's car, which had been left parked near the service station. Before leaving, James told his cousin that he, James, would see the other the next day. James and the girl then went to a "safety break" stand operated by the Jaycees for the Labor Day weekend. There James drank coffee or a Coca Cola. Upon leaving, James told another cousin, "I will see you."
James and the girl then drove to a new, vacant house on Wavetree Drive, in Roswell, and parked in the carport there. After parking, the girl smelled whiskey on James' breath, and he told her that he had been drinking that evening. He became sick, got out of the car and went to the back of it. It "sounded like he was trying to" vomit. Coming back to the car, he got in on the right-hand side, and the girl slid under the steering wheel. When she asked him if he felt better, he replied, "No, I don't. I feel like deathly sick."
In the automobile with him that evening James had a .380 caliber automatic pistol. He had told his father that he had got the pistol in order to resell it for a profit. He had in fact tried to sell this pistol.
As to their conversation and the events in the minutes immediately preceding James' death, the girl testified: "During the course of the evening I guess we talked about — he talked about one of his cousins who had been killed in a car wreck and how much he had thought of him, and, you know, what he would have done to prevent the accident. Also he talked about some other cousins of his, two little girl cousins that he was very fond of, and he told me that he would do anything for them, he would just give his life for them; then he started talking about that he thought so much of me and that he would also give his life for me, and all. You know, just kept going on like that; and he talked about some of his other girl friends, that was quite strange, it was quite a strange conversation, something you don't really talk about — . . . He seemed to think that nobody cared about him, that nobody cared what happened to him, what he did or anything of that nature. . . Then he was talking about me, you know, and he wanted us to get married that night, and I wouldn't answer him, and he kept saying he just couldn't live without me. And I just had to marry him. So then he said if I didn't he was going to shoot himself. . . He was not sitting when he got back in the car. He was laying on his stomach with his knees bent. He was laying on his stomach with one elbow over the back seat and the other elbow resting up against the dash of the car; he was just right next to me." James then produced the pistol from under the front seat of the car. "He said that if I didn't marry him, he was going to shoot himself. And he put the gun to his head . . . He told me that he was going to count to five, and I wouldn't answer him yes or no about whether I would marry him, because then I was pretty well petrified, I didn't take him serious and yet I didn't know, so I wouldn't answer him yes or no. So he kept telling me to answer him, if I said yes, we would get married, if I said no, he was going to shoot himself, and I wouldn't answer him either way. So he moved on over closer to me, he put his head right up against me, and he told me he was going to count to five, and if I didn't answer him, he was going to shoot himself. . . I don't actually think he ever made the statement `If you don't answer me,' he just kept telling me to answer him. . . He kept clicking his finger nail on the trigger. And he was actually — he was tormenting me because he kept saying, `Now, just listen to that now, when my finger touches the trigger it's going off,' and he was clicking his fingernail on the trigger. . . So he counted to five [slowly] and nothing happened. . . I was real relieved and I thought, well, he had his joke. . . So he said he was going to give me one more chance, you know, and asked me again and say yes or no, and I still wouldn't answer him. . . He said, I'm going to give you one more chance and I am going to count to three.'. . His head was right next to mine. . . His left temple against my right. . . So then in the meantime, some time between then and the time he pulled the trigger, I moved my head sideways . . . away from his — anyway he counted to two, and the gun went off. . . I don't know whether the gun went off after the two, it was just right there together. . . Whether he actually put his finger up there and pulled it [the trigger], I don't know. . ."
The discharge of the pistol resulted in James' instant death.
1. 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 of 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 recognize 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 S.E. 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 S.E. 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 S.E.2d 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 S.E. 20); Hodnett v. Aetna Life Ins. Co., 17 Ga. App. 538 ( 87 S.E. 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 both 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 S.E.2d 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.
For an excellent discussion of the confusion and anomalies existing in the several jurisdiction 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.
2. 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 then 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 S.E.2d 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 S.E. 383); Supreme Forest Woodmen Circle v. Newsome, 63 Ga. App. 550, 565 (2) ( 11 S.E.2d 480); Boswell v. Gulf Life Ins. Co. (5th Cir.), 227 F.2d 578.
The 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 Russell, JJ., concur. Frankum, J., concurs in the judgment only. Felton, C. J., Nichols, P. J., Jordan and Pannell, JJ., dissent.
In her motion for rehearing the plaintiff charges that this court in the opinion carrying with it the judgment of reversal ignored certain evidence showing that the insured's death was accidental. The evidence referred to is a certificate of the death of the insured completed by "Tom Compton, Coroner." The certificate shows that the immediate cause of death was "Contact gunshot wound of head with destructive brain damage" and that the injury occurred through "Accidental discharge of a gun."
Code Ann. § 88-1118 provides that certificates filed under the provisions of Code Ann. Ch. 88-11, pertaining to the registration of births and deaths, "shall be prima facie evidence of the facts stated therein."
The fault of evidence admitted under this provision is that it is hearsay evidence, and thus, Code Ann. § 88-1118 amounts to an exception to the hearsay rule. This initial fault is further compounded by including in the certificates statements based on hearsay — that is upon information supplied by other persons to the person completing the certificate — and by including in the certificates statements of conclusions of the person completing the certificate, which may be either conclusions based upon hearsay or conclusions as to which the person completing the certificate would not be qualified as an expert or otherwise to testify personally.
The language of Code Ann. § 88-1118 makes a death certificate completed and filed in accordance with the provisions of Code Ann. Ch. 88-11 "prima facie evidence of the facts stated." This necessarily means that only "facts" contained in the certificate are accorded the dignity of constituting prima facie evidence. While Code Ann. § 88-1116 (4) directs the official completing the certificate to include whether the death was probably accidental, suicidal or homicidal, that requirement amounts to nothing more than authorization to express an opinion, surmise or conjecture as to the probability of the means of death. The expression of an opinion, surmise or conjecture as to the probability of the means of death is not a statement of an ultimate fact and not being a statement of fact expressions of that nature are clearly excluded by the statute from constituting prima facie evidence. See Equitable Life Assur. Soc. v. Stinnett, 13 F.2d 820, 822 (1).
Such a statute is in derogation of the common law. Mutual Life Ins. Co. of N.Y. v. Bell, 147 Fla. 734 ( 3 So.2d 487); Bishop v. Shurly, 237 Mich. 76 ( 211 N.W. 75). Being in derogation of common law, it must be strictly construed. Foster v. Vickery, 202 Ga. 55, 60 ( 42 S.E.2d 117) and citations.
Under the rule of strict construction that must be applied to Code Ann. § 88-1118, a death certificate is incompetent to prove particular matters stated in the certificate (1) where the statement is based on hearsay and not upon the personal knowledge of the physician or official completing the certificate and (2) where the statement is a statement of opinion to which the physician or official would not be qualified to testify personally. In these instances the statements contained in the certificate are not statements of "fact" within the meaning of Code Ann. § 88-1118, and the exception to the hearsay rule is inapplicable. Although there is some foreign authority to the contrary, we consider that the rule stated here represents the better view and the preponderance of authority. See, e.g.: Equitable Life Assur. Soc. v. Stinnett, 13 F.2d 820, supra; Morton v. Equitable Life Ins. Co., 218 Iowa 846 ( 254 N.W. 325, 96 ALR 315); Kentucky c. Ins. Co. v. Watts, 298 Ky. 471 ( 183 S.W.2d 499); Backstrom v. N Y Life Ins. Co., 183 Minn. 384 ( 236 N.W. 708); Callahan v. Conn. General Life Ins. Co., 357 Mo. 187 ( 207 S.W.2d 279); Welz v. Commercial c. Accident Assn., 40 NYS2d 128 ( 266 App. Div. 668); Carson v. Metropolitan Life Ins. Co., 156 Ohio St. 104 ( 100 N.E.2d 197, 28 ALR2d 344). Contra: Branford Trust Co. v. Prudential Ins. Co., 102 Conn. 481 ( 129 A 379, 42 ALR 1450). On this subject generally, see: Ann. 17 ALR 366; Ann. 42 ALR 1455; Ann. 96 ALR 324; Ann. 28 ALR2d 352; 27 New York University Law Review 158; 32 CJS 827-828, Evidence, § 638.
The coroner's statement in the certificate in question, that the insured's death occurred through "Accidental discharge of a gun," was a statement of mere opinion and not one of fact. Thus, it did not constitute prima facie evidence. Further, it was hearsay not within the exception provided by Code Ann. § 88-1118. As hearsay, this evidence of the accidental death of the insured, though admitted without valid objection, had no probative value whatever. Eastlick v. Southern R. Co., 116 Ga. 48, 49 ( 42 S.E. 499); Higgins v. Trentham, 186 Ga. 264 (1) ( 197 S.E. 862); Fuller v. Fuller, 213 Ga. 103, 104 ( 97 S.E.2d 306).
"The Georgia courts steadfastly declare that hearsay has no probative value. This means what it says. In this state, hearsay alone will not support a verdict." Green, Georgia Law of Evidence (1957 Ed.) § 222, p. 501.
Motion for rehearing denied.
Chief Judge Felton and Judges Hall and Eberhardt concur with these expressions.
Judges Frankum and Russell concur only in the judgment denying the motion for rehearing.
Chief Judge Felton does not concur in the judgment denying the motion for rehearing.
Presiding Judge Nichols and Judges Jordan and Pannell do not concur in the judgment denying the motion for rehearing but take no position on the discussion on the motion as they consider it unnecessary in light of their views on the case.
Addendum. It seems advisable to point out that there is in this case no holding of law sufficient to constitute a binding precedent on anybody. The case as published is nothing more than an evenly balanced series of views with four judges representing one and four judges another. One judge agrees with the reasoning of neither but does concur in the judgment of reversal. A judgment of the court is made possible only by the circumstance of numbers and the duty of all of the judges to go one way or another.
This situation displays the confusion existing in the phase of the law under consideration and dramatically demonstrates that this court cannot alleviate the chaos. It must remain for higher authority to do so.
I dissent from the conclusion reached by the majority since I cannot reconcile the facts of this case with the language used by the Supreme Court of Georgia in the Templeton and Belch cases, supra, and the result reached by the court in those cases. In both cases the Supreme Court reversed this court on the questions here being considered. In my opinion the facts in the Belch case come closer to demanding a verdict of suicide than do the facts in this case.
The facts recited in the majority opinion and replete throughout the record show an apparently normal, healthy, fun-loving youth without the slightest outward manifestation of worry or concern. Such facts shine brightly on the presumption against suicide and brilliantly illuminate it. They bolster and fortify it so as to clothe it with an almost impregnable armor. To keep it from the jury room under such circumstances it must be assaulted with facts and circumstances so overwhelmingly powerful that when viewed from every possible legal point would sustain no other finding save that of suicide. Horn v. Preston, 217 Ga. 165 (1) ( 121 S.E.2d 775). I do not think the facts of this case can meet that test.
Justice Mobley, speaking for the court in Belch, indicated that where "there were actual witnesses to the suicidal act" (emphasis supplied) the granting of a directed verdict or judgment n.o.v. might be justified in spite of the presumption against suicide. He properly prefaced this by saying "where there is no conflict in the evidence," for certainly the fact that one person saw another shoot himself with a weapon would not ipso facto demand a verdict of suicide. Self-destruction in such cases can be the result of accident, such as a person carelessly examining the weapon to "see if it is loaded," or where one is playing with a weapon in the genuine belief that it is harmless. The mere fact that such an occurrence has an eyewitness is not of itself determinative of the question of suicide. I do not think this case fits into this so called "niche" stated in the Belch case, as contended by the plaintiff in error.
But actually we do not have an eyewitness in this case. In the absence of proof to the contrary we must assume that it was dark at midnight. The young lady present at the time was only an "earwitness" for she stated "actually I don't know what he did, I just heard it click," and "whether he actually put his finger up there and pulled it, I don't really know" and "I didn't see anything, I just heard the click" and "I don't remember seeing which hand it was . . . well, it was pretty dark." Thus, the only person present could not testify precisely as to the cause or manner in which the gun was discharged. Such testimony leaves this question open to conjecture. This, coupled with the young lady's testimony that just before the instant of firing (at the count of two) "I moved my head sideways, . . . I was trying to get my head away was the main thing," would reasonably support the inference of accidental discharge resulting from her sudden movement due to the "temple to temple" position they were in at that instant. The reasonableness of such an inference must be viewed in the light of all the circumstances surrounding the incident, the "chance" meeting of the deceased and the young lady only an hour or so before, the deceased's further plans for the weekend, his contentment with his job, and the complete lack of evidence pointing toward a worried or unhappy state of mind. If the deceased actually intended to end his life, such intention was outwardly manifested only a few minutes before the act. Can the human mind make such a calamitous decision in a matter of minutes completely contrary to all previous thought and action? I seriously doubt that it can. Human experience teaches us that normal suicide is the result of weeks or months or even years of brooding and reflection over problems apparently very serious to the troubled mind. Not one iota of evidence in this case points in that direction.
I am aware of the result reached in Thompson v. Prudential Ins. Co. of America, 84 Ga. App. 214 ( 66 S.E.2d 119), and similar cases involving so-called "Russian roulette." I agree with the result reached in those cases where the evidence clearly shows that the deceased voluntarily and intentionally and knowingly places a loaded weapon to his head and pulls the trigger. The evidence here is far from being that clear, and due to the lack of positive evidence on this point we cannot conclude as a matter of law that this deceased reached his death in this manner.
It would be hard to envision a situation where the presumption against suicide was more forcefully supported by the facts than in this case. Under such circumstances the presumption should only vanish when a jury in considering all the facts and circumstances determines that the preponderance of the evidence is against the theory of accident. Templeton v. Kennesaw Life c. Ins. Co., 216 Ga. 770, 773, supra. As stated in headnote 1 (5) of the majority opinion in the present case: "Where there is direct or circumstantial evidence, either or both 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."
As was said by the court in Templeton and repeated in Belch, "Courts should be careful, in the absence of a direct mandate of law, to take away from juries questions that time and experience have proven should be left exclusively for determination by the jury."
Although the evidence in this case would authorize a finding of suicide, I think that the facts were sufficient to support the finding of the jury that the deceased did not commit suicide. In my opinion the court did not err in refusing to grant the defendant's motion for judgment notwithstanding the verdict.
I am authorized to state that Nichols, P. J., concurs in this dissent.
Regardless of what might be the proper interpretation of the decisions of the Supreme Court in Templeton v. Kennesaw Life c. Ins. Co., 216 Ga. 770, 773 ( 119 S.E.2d 549), and Belch v. Gulf Life Ins. Co., 219 Ga. 823 ( 136 S.E.2d 351), it is my opinion that there is evidence to authorize a finding of accidental death in the present case. The testimony of the young lady, as to the occurrence wherein the insured died from a bullet wound in his head, that the deceased insured threatened at one time to shoot at the count of five but failed to shoot at the count of five, then put his head next to hers, his left temple against her right temple, said he was going to give her one more chance, he was going to count to three, that during this countdown he kept clicking his fingernail on the trigger and kept saying, "Now, just listen to that now, when my finger touches the trigger, it is going off," then before the pistol fired she moved her head and the pistol went off at the count of two, is sufficient to authorize a jury to find that he was clicking the trigger when the young lady moved her head, and this movement caused him to unintentionally pull the trigger rather than merely clicking the trigger with his fingernail. Under these facts, the finding of accidental death within the terms of the policy would be authorized.
I am authorized to state that Felton, C. J., concurs in this dissent.