Buro v. Home Benefit Ass'n

BARCUS, J. This is the second appeal in this case. The former judgment was reversed because of the insufficiency of the testimony to support a finding in favor of appellant. Home Benefit Association v. Buro, 10 S.W.(2d) 188. On the last trial judgment was entered on the finding of the jury against appellant. The facts are substantially as stated in the former opinion. Briefly summarized', they show that Mrs. Buro, wife of appellant, toot a policy of insurance with appellee on October 12th and gave a postdated check, which was paid on October 19th. On October 21st she died as the result of being shot with a pistol. On October 20th some officers went to Mrs. Buro’s home in Bosque county with! a warrant for her arrest; she having been charged with forging her landlord’s name to some checks. She was at the barn when the officers arrived, dressed in her working clothes, and she requested time to go into the house and change her apparel, which was granted. She was a woman about 6 feet tall, and weighed' about 250 pounds. After she had been in the house a few minutes, she called to the officers and told them that it would be some time before she would be ready to go. They heard her walking around in the room. Finally everything got quiet and they started toward the house and heard a pistol shot. They rushed to the door and found same locked. They broke into the house and found Mrs. Buro, fully dressed, except her shoes, she having bathed and changed her clothing, lying diagonally across the bed, the pistol with which she had-been shot lying on the floor almost directly under her right hand. Her shoes were on the floor under her feet. The only word or expression heard by any one that she uttered after she was shot was “Oh,” and one witness stated she asked for water. She was'shot about 1:30 in the afternoon. A doctor was summoned, and he arrived about an hour thereafter. Her husband’s sister arrived before the doctor, and two other women came about the time or after the doctor arrived. When the doctor came, Mrs. Buro was sitting up in bed. He attempted to get her to talk and to learn from her how the shooting had occurred, but could not get her to say anything and obtained no expression of any kind from her. He was with her about one hour and a half. Her sister-in-law testified that when she went in the room no one else was there, and that she asked Mrs. Buro if she was hurting, and she nodded her head, indicating she was; that she then asked her if she had shot herself intentionally, and she shook her head indicating she had not. None of the other parties around the house at the time heard the questions asked or knew anything with reference thereto. The sister-in-law testified that she told no one about it thereafter except her husband. Mrs. Buro was carried in an ambulance to Hillsboro about 6 o’clock in the afternoon, and was unconscious from the time she reached there until her death the following afternoon. The physician who first examined her, as well as the physician in the hospital, testified that the pistol wound entered from the front and came out in her back, and that the gun had to be almost perpendicular to hér body to make the wound; the bullet having gone almost straight through just below the heart. Her dress and flesh where the bullet entered were badly powder burned, showing that the gun was against or very near her body when fired. The policy of insurance provided that, if the insured committed suicide within one [904] year, the company was not liable. The sole issue therefore for determination was whether Mrs. Buro committed suicide, or whether her death was caused by an accident. The jury found she committed suicide. There is no contention hut that she had the gun in her possession at the time the shot was fired which caused her death. There was no one else in the room or about the place except the officers who had coihe to arrest her. The trial court instructed the jury that suicide is voluntary and intentional self-destruction, and charged them that the burden of proof was upon the defendant insurance company to establish by a preponderance of the evidence that Mrs. Buro met her death by suicide, and that in determining said' question they could consider all the facts and circumstances in evidence. Appellant contends that the trial court Should have given an instructed verdict for him, on the theory that the evidence did not exclude every other reasonable hypothesis other than the fact that Mrs. Buro committed suicide. Clearly, to our mind, the court would not have been authorized to instruct the jury to return a verdict for appellant. The evidence abundantly supports the verdict The following rule is laid down in 37 C. J. 640: “The defense of suicide need not be established beyond a reasonable doubt, but a preponderance of clear and satisfactory evidence, direct or circumstantial, is sufficient and also necessary to establish the fact of suicide.” Again it is stated in 22 C. J. 95: “The presumption is always against suicide or self destruction on the part of a sane person who came to his death under circumstances not explained. The presumption is, however, re-buttable, and it has been held that a mere preponderance of evidence is sufficient to rebut it.” Appellant further contends that the trial court should have instructed the jury that the burden was on defendant to establish that Mrs. Buro committed suicide, with such preponderance of the evidence as to exclude any reasonable hypothesis of natural or accidental death, and further because the court refused to charge the jury that the law always presumes against suicide on the part of a sane person who comes to 'his death under circumstances not explained, and further because the court refused to charge the jury that, before they could find she committed suicide, the evidence must be sufficient to exclude any reasonable hypothesis that her death was caused by accident. All of the above propositions relate to practically the same question. We do not think the court was in error in refusing to give the special instructions, or either of them, requested by appellant. They amounted to a charge on legal presumptions. Almost an identical charge was requested in Jennings v. Sovereign Camp, W. O. W. (Tex. Civ. App.) 296 S. W. 961, 962, and the court held same should not be given, and stated: “Without any discussion of this charge, and in view of another trial, we deem it best to state that it .is improper for the trial court to charge on legal presumptions unless the same are expressly defined by statute. Stooksbury v. Swan, 85 Tex. 565, 22 S. W. 963; Reynolds v. Weinman (Tex. Civ. App.) 33 S. W. 302.” Appellant further complains of the argument of counsel for appellee. We ¡have examined these assignments, and, under the facts of the case, we do not think same show any reversible error. El Paso Electric Co. v. Collins (Tex. Civ. App.) 10 S.W.(2d) 397, reversed on other grounds (Tex. Com. App.) 23 S.W.(2d) 295, in which opinion said court specifically held that the Court of Civil Appeals was not in error in refusing to reverse the case because of the argument of counsel. We have carefully examined' all of appellant’s assignments of error, and same are overruled. The judgment of the trial court is' affirmed.