Opinion
34520.
DECIDED MARCH 13, 1953. REHEARING DENIED APRIL 2, 1953.
Complaint on life policy; from Floyd Superior Court — Judge Nichols. December 12, 1952.
Wright, Rogers, Magruder Hoyt, for plaintiff in error.
E.J. Clower, contra.
Where the fact of death of the insured is established, and the evidence points equally to the theory of death by accident or to suicide as the cause thereof, the theory of accidental death, rather than of suicide is to be adopted, and the verdict of the jury in favor of the plaintiff against the defendant insurance company is authorized by the evidence and is not contrary to law.
DECIDED MARCH 13, 1953 — REHEARING DENIED APRIL 2, 1953.
Edith Brock filed suit in the Superior Court of Floyd County against Metropolitan Life Insurance Company on a contract of insurance, in which the defendant had insured the life of Shelton G. Brock, the plaintiff's husband, against death, in the sum of $6000, to recover the amount of said policy with interest, twenty-five percent penalty, and attorney's fees. The plaintiff was named beneficiary in the contract of insurance sued on. In her petition she alleged that she had filed notice and proof of death and demanded payment on December 16, 1949, and that more than sixty days had elapsed and the defendant company has not paid the loss or any portion thereof. It appears that the insured died on or about December 12, 1949, and that the policy had been issued on August 1, 1949. The defendant answered and denied liability, admitting that proper proof of death and demand for payment had been made, and setting up that the insured had committed suicide within two years from the date the policy was issued, and that it was, therefore, under the provisions thereof, liable only for an amount equal to the premiums paid, which sum ($27.50) had been tendered to the beneficiary, and which she refused to accept. The policy contained this provision: "5. Suicide: If the insured, within two years from the date of the issue hereof, dies as a result of suicide, whether sane or insane, the liability of the company hereunder shall be limited to an amount equal to the premiums which have been received, without interest."
The case came on for trial before a jury, and resulted in a verdict for the plaintiff for $6000 and $1115 interest.
The widow of the deceased testified that her husband was a Church of God minister and was apparently in good spirits and without domestic difficulties, and also that he was in good physical condition.
Hugh Hodges, a mortician, testified for the plaintiff that he examined the body of the deceased, and the whole back of his head was crushed and soft; that his skull had been crushed; that the witness had many years experience in funeral homes; that he did not find any powder burns on the deceased; that for 16 years he had had experience with bodies with gunshot wounds, and that, when the cause of death is by blunt instruments, it is possible for a man's skull to be crushed without any external gash being visible on the outside; that same may be done without "mussing" up the hair to any extent; that the whole of the back of this man's head was crushed; that the witness had handled many cases of gunshot wounds and had never handled one yet where the shot had crushed the head and had not protruded; that in all the cases he ever saw or examined the shot protruded; that the eyes would be protruded, popped out and "enucleated," and that the deceased's eyes were open, and his body was not badly decomposed. On cross-examination the witness testified that in all the cases he had ever seen, regardless of the caliber of the gun, the shot would go through the head and protrude; that, if the shot came out the back of the head, the head would have been torn up more than the deceased's was, and that there would [should?] have been enough concussion from that shell to do this. He testified that in his opinion no gun was discharged in the mouth of the deceased, and that he felt no pellets in the back of the head, but it was just soft and mushy.
J. V. Wheeler testified for the plaintiff that the witness had known the deceased for three or four years, and that the deceased was always jovial and he had never heard of any troubles.
Reverend T. R. Morse, a Church of God minister, testified to the same effect, and also that he saw the body of the deceased at the funeral home and he looked into his mouth and there was only the wound about the size of a nickel in the back.
Paul Bell testified for the defendant that he saw the deceased about 12 days before the death, that he talked about hunting, and borrowed a 16-gauge gun from him; that, when the gun was returned, it had a stain on it about three inches from the end of the barrel, but that the witness did not know that it was blood; that there was blood on the seat by the side of the deceased; that the deceased also asked him whether or not he had a "short" gun or a pistol. He further testified that the gun he had was a single-barrel one, full choke, and that it was not a hair trigger, but just ordinary.
Ray Jordan testified for the defendant that he and Oscar Champion and Oscar Turner went to view the body in the car; that they came to him about seeing a body in the car up in the woods; that he looked in and saw the deceased lying slumped over with the barrel of the gun in the bosom of his shirt. The witness described the position of the man and the gun, which description coincided with what the coroner testified, and testified that he saw photographs taken; that the deceased had his shoes on, and that there was no stick or string on the trigger; that he saw no gun wadding anywhere; and that the deceased was not dressed for hunting.
Howard Baker, the coroner, testified for the defendant that he investigated the death of the deceased, and that Wallace Wheeler, of the G.B.I. was with him; that the deceased was "sitting under the steering wheel leaning to the right in a relaxed position, . . his right foot was extended toward the gas pedal. His left foot was on the floor board under the seat, with the ankle bent. As to the position of the gun, the stock was to the floor board, the barrel pointed toward the chest of Brock. His right hand was to the side but not on the gun. . . The hole in his mouth extended upward and to his left through the roof of his mouth, indicating to me that he had been shot in the mouth . . we found some shotgun pellets [two] in his mouth . . there were bones broken in the back of his head, the bones were almost what I would call crushed. You could mash them. The back of his head was soft. . . There were no powder burns on the outside of Brother Brock's face or outside of his mouth. No pellets struck his face or the outside of his mouth. . . In my opinion Reverend Brock's death was caused by a shotgun wound."
There was also evidence that the deceased had been missing from ten to twelve days, rain had fallen on the ground and through the open car window, therefore signs of a struggle would not have been evident. There was testimony to the effect that two teeth were missing and were never found. The deceased had on his person $2.50. There was no evidence as to finger prints. There was no evidence that any analysis had been made to show that the red stains in the car or on the deceased's clothing were human blood, and the testimony shows that "they did not know whether the stains were [human] blood."
According to the brief and argument of the defendant insurance company, the real question involved in both the original motion for a new trial and the amendment thereto is whether the verdict herein "is contrary to law and to the evidence and without evidence to support it." The deceased, husband of the plaintiff, had been a Church of God minister for some twelve years prior to his death. He had been, at the time of his disappearance some nine days prior to his discovery, holding a revival near Canton, Georgia, but lived at or near Rome, Georgia, and was apparently a happily married man with three children, and had no known worries or difficulties, financial or domestic, save that he was a little perturbed as to whether or not he had correctly filled out his income-tax return. It appeared that the deceased fasted a good deal, and it also appeared that he liked very much to hunt, but had not done much hunting since coming to Georgia earlier that year. On December 12, 1949, the body of the insured was discovered on a lonely forest or woods road, slumped over in the front seat of his automobile, with a 16-gauge shotgun, single barrel, beside him, the same "sort of" between his legs, the end of the barrel just under his shirt about his chest, and his left hand resting under the gun and the right hand several inches from the trigger. The gun had been discharged, but there were no powder burns or marks on the deceased. There was a hole about the size of a nickel in the back of his mouth and some blood had come out of his mouth and nose. Several small leaden pellets were found in his mouth. There was no place at the rear of his head, showing where any bullets or shotgun load had emerged. No autopsy was held. The deceased had been a man of a cheerful and genial disposition and nature. There did not appear to be anything particularly worrying him. The day he disappeared the deceased had been to an acquaintance and borrowed the shotgun found at his side, together with some shells. All of these shells, counting the shell in the gun which had been fired, were found by his side on the front seat of the car. At the time he had asked this friend whether he owned a "short" gun or pistol, and upon being told "No," he said nothing else. The insured was not found in a good hunting locality. He was dressed in his regular clothes, the ones he sometimes preached in. In addition to there being no place in the back of the deceased's head or elsewhere showing where any shots or bullets had penetrated his head through his mouth, both his head and face were intact. The back of his head was soft as it would be if it had been struck several times with a heavy iron instrument, but the skin was not broken. There was no evidence that he was in bad health and was temperamental in any way.
It is insisted that from the foregoing facts a verdict finding that the deceased had committed suicide was demanded, and that the court ought to have directed the same. The plaintiff in error says that the verdict in favor of the beneficiary is contrary to law and without evidence to authorize the same. It is urged that no other finding could be had from the foregoing except that the deceased committed suicide. With this we do not agree.
The burden of proof was on the defendant insurance company to establish to the jury's satisfaction that the deceased met his death as the result of suicide. "When the insurance company defends upon the ground of suicide, the burden is upon the company to establish such contention by a preponderance of the evidence." Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797, 804 ( 72 S.E. 295), and cit. The facts in the present case are not similar to those in Hall v. Progressive Life Ins. Co., 61 Ga. App. 792 ( 7 S.E.2d 606), although they are somewhat analogous. The evidence here was such that the finding of the jury that the death of the deceased was not suicidal was not without some evidence to support it. The circumstances were such that the jury were properly authorized to deduce that the deceased met his death at the hands of some other person or by some accidental means. "The law never presumes suicide," not even from "the fact of self-destruction." Mutual Life Ins. Co. v. Durden, supra. It seems that if the insured had placed the end of the 16-gauge shotgun barrel in his mouth and the same had been fired, the explosion would have produced far more evidence and signs than were found about the head and face of the deceased. The jury could have found that the explosion would have more or less destroyed the upper part of his head and his face, and certainly would have penetrated the back of his head. The man's head did not appear to have been subjected to a violent explosion of a 16-gauge shotgun in his mouth. The jury could have well inferred that the insured had been killed in some other manner and his body placed in the position in which it was discovered, and such inference was not without evidence to support it or unauthorized. It was, under the facts, reasonable. It was in harmony with the law and the physical facts and circumstances before the jury. A verdict that this insured had committed suicide, which is intentional self-destruction, was not demanded from the evidence as a matter of law. The fact that there were no signs of any struggle about and in the deceased's car, where the body was found, and that he had some cash money in his pockets, were properly considered by the jury, but were not sufficient to demand a finding that the deceased had committed suicide. See Mutual Life Ins. Co. v. Durden, supra. The evidence here did not, as a matter of law, overcome the presumption against suicide. The present case is not like New York Life Ins. Co. v. King, 28 Ga. App. 607 ( 112 S.E. 383), New York Life Ins. Co. v. Dutton, 70 Ga. App. 783 ( 29 S.E.2d, 638), Hamilton v. Metropolitan Life Ins. Co., 71 Ga. App. 784 ( 32 S.E.2d 540), and Martin v. Life Cas. Ins. Co., 84 Ga. App. 618 ( 66 S.E.2d 754) and other cases. Such cases are not authority for the contentions of the insurer under the facts appearing in the present record. "The plaintiff must make out her case; but in so doing she can use the presumption against suicide which the law recognizes as arising out of the instincts of nature, one of which is the love of life. Where the fact of death is established, and the evidence points equally or indifferently to accident or suicide as the cause of it, the theory of accident rather than of suicide is to be adopted." Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 801 ( 12 S.E. 18).
The verdict of the jury is therefore supported by the evidence and not contrary to the law for any of the reasons assigned; and none of the special grounds of the motion for a new trial shows any error. The defendant states that the latter are concerned with the question whether the evidence supports the verdict and are connected with the general grounds.
The court did not err in overruling the motion for new trial as amended.
Judgment affirmed. Townsend and Carlisle, JJ., concur.