Brotherhood of Maintenance of Way Employees v. Page

Smith, J. Judgment was. rendered in the court below upon an insurance policy for the amount thereof. Death by suicide was a risk not insured against, 'and the sole question presented on this' appeal is whether the insured had committed suicide. There is no substantial conflict in the testimony in this case. It was all given by the family and friends of the insured, and is to the following effect: Insured had been an employee of a railroad company for a number of years. His health failed in August, 1935, and he quit work for a while for treatment, but returned to work for the railroad company in January, 1936, when, on account of continued sickness, he gave up his job. He did no work after that time, and was worried and nervous. His section foreman testified: “Well, he was worrying about his financial condition and being out of work. He was worried quite a bit about that.” This foreman had told the insured that he would have to go to the hospital, and that he would not be able to work any longer, and insured did no work after that time. Shortly thereafter, and a few days before his death, insured was taken to the State Hospital for Nervous Diseases for examination. Nothing appears in the record as to the result of, or the report upon, this examination. Oh May 12, 1936, insured and his wife, the beneficiary of the policy, went to visit his daughter in Benton, Arkansas, and arrived there about two o’clock in the afternoon. Insured went to the room assigned to him in his daughter’s house, and remained there. His wife left and went to town. After his wife departed insured requested his daughter to get him a drink of water, and she went to the well a short distance from the house to do so, when returning with the water, she heard a noise in the house, and 'was told by a passerby that it was a gun shot. She hurried into the house, and found her father in a dying condition, lying on the floor, with his head resting against the wall,' and a discharged pistol lying on the floor a short distance from his right hand and about two feet from his body. The insured lived only a short time and did not regain consciousness. The pistol belonged to the daughter of insured, and had been left on a shelf in a comer of the room, which was about three feet above the floor. The pistol was easy on the trigger, according to the daughter’s testimony, and would go off from a jar or the slightest touch of the trigger. It may be. stated with entire certainty that the insured killed himself, either accidentally or intentionally. The thought that he may have been murdered has not been suggested, and it is inconceivable that-any member of the jury should have entertained even a suspicion that the devoted daughter had killed her father, and no one else had the opportunity to do so; How, then, did the insured kill himself? Appellee makes this answer: “It is as reasonable to assume that deceased was examining the pistol, when it was acci-dently discharged, or that he was overcome by one of his falling spells (to which he was subject), and in attempting to steady himself by grabbing at the shelf on which the pistol lay, caused its accidental discharge, as to assume that he deliberately placed the gun to his head and took his own life.” . We do not think these theories can be accepted with any show of reason, or that they would be seriously considered, if this were not a controversy between a bereaved widow and an insurance company. The undisputed testimony is to the effect that deceased was not examining the pistol when his daughter left him to get the drink of water, and the fatal shot was fired during her short absence. The daughter testified that the pistol was “on a shelf in a corner of the room he was in,” but the undisputed testimony is to the effect that the body was not found near the shelf nor in that corner of the room. The coroner testified that appellee had stated at the inquest that insured had been -seen weeping on the day of his death, and while that testimony is denied, there appears to be no question but that insured was in the depths of utter despair on the-very day of his death, on account of his physical and financial condition. When the daughter returned hurriedly from her mission for her father, she found him lying on the floor, with his head resting against the wall, and the pistol lying on the floor a' short distance from his right hand, which was outstretched. There was a mirror hanging on the wall to the left of the door, and the bottom of the mirror was about five feet above the floor, and to the right of the mirror were some splotches on the wall that looked like blood. Insured’s feet were some two or three feet from this wall and almost directly in front of the mirror, and his body was lying at an ángle out from the mirror. The coroner testified that “The wound was practically halfway between the ear line and the top of the head, just a fraction of an inch to the rear of the median line going to the ear.” He further testified that he probed the wound, and that the bullet was still in deceased’s head, and had ranged downward. He testified also that there was evidence of powder burns on the deceased’s head. Appellee’s brief concedes the truth of these facts, but states that “There were very few powder burns around the wound.” The significant fact is not the extent of the powder burns, but, rather, the fact that, there were powder burns above or behind the ear at the place where the bullet entered. . It must be conceded that we have a number of cases, of very tenuous character, affirming verdicts apparently finding that the insured had not committed suicide, in which the evidence greatly preponderated to the contrary. '• But we have always recognized the fact that the legal sufficiency of the testimony to support such a verdict was a question of law for the court. Catlett v. St. Louis, I. M. & So. Ry. Co., 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254. In the following cases the jury had found that the insured had not committed suicide: Industrial Mutual Indemnity Co. v. Watt, 95 Ark. 456, 130 S. W. 532; New York Life Ins. Co. v. Watters, 154 Ark. 569, 243 S. W. 831; Ætna Life Ins. Co. v. Alsobrook, 175 Ark. 523, 299 S. W. 743; Fidelity Mutual Life Ins. Co. v. Wilson, 175 Ark. 1094, 2 S. W. 2d 80; Home Life Ins. Co. v. Miller, 182 Ark. 901, 33 S. W. 2d 1102. We reversed each of those cases, for the reason that, in our opinion, there was no reasonable conclusion which could be drawn from the testimony recited in those opinions except that death had been caused by suicide, notwithstanding the verdicts of the jury to the. contrary. A comparison of the facts stated in those opinions — which we shall not pause to make — will show that in none of them was it more certain that the insured had committed suicide than in the instant case. It is, therefore, our duty, when, in our opinion, there is no reasonable view of the testimony except that the insured had committed suicide, to reverse the judgment pronounced upon the contrary finding by the jury. The cases above cited and others on the subject have recognized the case of Grand Lodge A. O. U. W. v. Banister, 80 Ark. 190, 96 S. W. 742, as our leading case on the subject, and all subsequent cases have professed to follow the principles of law there announced, in the application of which some judgments have been affirmed, while others have been reversed. That case and all others announce the proposition' — which we here reaffirm — that ‘ ‘ There is a presumption against suicide or death by any other unlawful act, and this presumption arises even when it is shown by proof that death was self-inflicted— it is presumed to have been accidental until the contrary is made to appear.” But no case has ever held that this presumption was conclusive and might not be overcome by testimony. Nor has any case ever held that the testimony must be that of eye-witnesses. It is, on the contrary, a matter of common knowledge that suicide is usually committed with'as much secrecy as possible, and could be but rarely shown, except by proof of the facts and circumstances attending its commission. In the case of Fidelity Mutual Life Ins. Co. v. Wilson, supra, we quoted with approval from 14 R. C. L. 1236-7 the following statement- of law on this subject: “The-presumption against suicide will stand and be decisive of the case until overcome by testimony which shall outweigh the presumption.” We think the undisputed testimony and the physical -facts outweigh this presumption and leave no reasonable doubt but that the insured committed suicide. - The judgment must, therefore, be reversed, and as the cause appears to have been fully developed, it must be dismissed. It is so ordered. Humphreys, Mehaffy and Baker, JJ., dissent.