1. ( a) Where an insurance policy provides for benefits in case of death by external, violent and accidental means, where the means producing death were external and violent, there is a presumption, in the absence of evidence to the contrary, that the means were also accidental.

( b) The evidence in this case, while it might have authorized an inference that the death of the insured was a result of suicide, is also sufficient to authorize the inference that the death was not the result of intentional self-destruction. The motion for a new trial on the general grounds was without merit.

2. ( a) In a suit under an insurance policy which provides for benefits in case of death by external, violent, and accidental means where the means producing death were external and violent, and where the defense is based on suicide, where no evidence is introduced as to the cause of death, the presumption against suicide and in favor of accident will carry the plaintiff's prima facie case.

( b) In such a suit, where evidence is introduced which "points indifferently" to either result, this basically means no evidence at all, and the presumption will again apply and will make out a prima facie case for the plaintiff.

( c) Where the plaintiff relies solely on the presumption against suicide and has not abandoned it by introducing evidence tending to show affirmatively that the decedent did not die by self-destruction, so that the evidence which the plaintiff has introduced shows only that the decedent died as a result of violent and external means, and the defendant introduces evidence tending to show that death occurred by suicide,

(1) if the plaintiff offers further evidence which, if believed by the jury, would impeach the witness offering the testimony for the defendant tending to show suicide, the trial judge, after charging the jury properly on impeachment, would be authorized to instruct the jury that if they found the defendant's witness offering the testimony tending to show suicide to have been impeached, the verdict should be awarded to the plaintiff; or

(2) the trial judge would be authorized to instruct the jury that if they disbelieved the defendant's evidence tending to show suicide, the verdict should be awarded to the plaintiff.

With respect to (c) (1) and (2), in instructing the jury under either of them, the trial judge should not use the phrase "presumption against suicide."

( d) The presumption against suicide and in favor of accident vanishes and disappears when conflicting or circumstantial evidence sufficient to authorize a verdict of suicide appears in the case.

( e) (1) Where the presumption against suicide has vanished, the fact on which the presumption rests, that a person prefers life to death, must itself be proved in each case as applying to the individual whose demise is in question before the jury may be authorized to consider it.

(2) The fact on which the presumption rests having been proved as a fact standing alone without reference to the presumption, it is proper for the jury to consider it.

(3) But where the basis is separately proved, it is erroneous to permit the jury to consider it in its relation to the presumption where the presumption has disappeared.

(4) With respect to (e) (1), (2), and (3), it is erroneous for a trial judge to mention to the jury the existence of a presumption where it is not existing but has vanished in the face of rebutting evidence. Thus, where elements forming the basis of the presumption against suicide have been properly proved, it is erroneous to mention to the jury that these elements form the basis of the presumption where the presumption has vanished.

3. The cases of Mutual Life Ins. Co. v. Burson, 50 Ga. App. 859 ( 179 S.E. 390); Metropolitan Life Ins. Co. v. Kennedy, 55 Ga. App. 554 ( 190 S.E. 873); New York Life Ins. Co. v. Ittner, 59 Ga. App. 89 ( 200 S.E. 522), together with all other cases of this court, insofar as they may be in conflict with the holdings here expressed, are specifically overruled.

DECIDED NOVEMBER 30, 1960 — REHEARING DENIED DECEMBER 20, 1960.

The plaintiff brought this action against the defendant corporation on a policy of insurance covering the life of her husband. The policy was a group policy issued to the Georgia National Guard under which the husband was insured by a certificate of insurance. The principal sum was $5,000 with a further provision for $5,000 in the event of accidental death.

The plaintiff's theory was that the insured met his death while cleaning a double-barreled shotgun, the gun being discharged by accident which resulted in the instant death of the insured by a load of shot in his left chest. The defendant's contention is that the insured committed suicide by means of the shotgun wound and, therefore, under the Georgia law ( Code § 56-909), the insurer was released from liability on the policy. No issue was made on appeal on the question as to whether the policy was in force and effect or as to whether the plaintiff had submitted sufficient proof of death as required by the terms of the policy. The company having failed to pay, after proof of death, this action was brought for the principal sum, the accidental death benefits, an additional 25% as damages for the company's refusal in bad faith to pay the claim, plus the sum of $2,500 as reasonable attorney's fees for the prosecution of the suit against the insurer, plus 7% interest upon the principal sum from June 30, 1959.

The defendant's answer denied that the insured met his death by accident, but contended that he came to his death by suicide.

The plaintiff's testimony, as it relates to the issue of accidental death versus suicide, indicated that the deceased was in good health; that her husband was employed at $525 per month plus expenses, as manager of the Georgia State Employment Service in LaGrange; that the plaintiff was employed as manager of McConnell's Cloth Shop in LaGrange at a salary of $250 per month plus commission; that her husband had not in recent years been treated by a physician except for an injury to his foot in 1957 when he stepped through a rotten plank in a bridge; that she and the insured owed very little money, approximately $1,700 total obligations; that on the day of his death the insured ate a hearty breakfast; that he visited the post office; that he ate a hearty noonday dinner; that he watched the baseball game on television; that they discussed the purchase of a freezer that he planned to get the next day; that later in the afternoon they jointly went to the post office to mail two letters, one written by the plaintiff, and one by the deceased to his supervisor; that the deceased and his son planned to go fishing the next day; that the deceased was excited about the prospects of fishing the following day; that he bought a carton of cigarettes at the drug store; that he discussed his pending retirement from the National guard, which would have been in December; and that they returned home around six o'clock in the evening and cut some strips for tomato vines, after which the plaintiff prepared supper for her mother, who lived with the plaintiff and the deceased. The plaintiff's testimony was that the gun was in her bedroom; that it had been brought back from a hunting trip the Christmas before and stayed there three or four weeks, after which the plaintiff took it upstairs where she placed it in a little anteroom with all the fishing tackle and guns. She did not examine the gun when she moved it to see if it was loaded. The plaintiff did not see the deceased take the gun, but saw him come through the kitchen with it as she was preparing the evening meal for her mother. The deceased had taken one drink of whisky from a bottle which was sitting on the kitchen table, about one hour before he came through the kitchen with the gun. The plaintiff heard an explosion on the back porch shortly after the deceased came through the kitchen with the gun.

When the ambulance drivers came, they moved the body and picked up a ramrod and laid it on a flower box on the porch. Plaintiff's Exhibit 2 (a photograph) shows a double-barreled shotgun at the foot of the steps testified to be the back porch steps. The plaintiff identified the oil can and cleaning fluid shown in the photograph at the top of the steps as belonging to her husband. The plaintiff testified that her husband was sitting on a rag from a box of rags which were kept available for their son to wash his car. The plaintiff testified that her husband was very jovial and "he never had a worry in the world," and on the day of his death he was very jovial.

Ten days after the death, on April 29, 1959, the plaintiff wrote a letter to the defendant insurance company attaching the insurance certificate and a form labeled the claimant's statement, a proof of death by the attending physician, and a statement of the mortician. She testified that she never received any answer to this letter submitting the claim. The claimant testified that no notes of any kind were found written by the deceased.

The son of the deceased testified that he and his father and a Mr. Kelly had planned to go fishing the day after the death of the deceased; that when they went fishing on the river they usually took a gun or a pistol to shoot carp or snakes, mostly snakes. This witness identified the tackle box shown in the photograph on the back porch as his father's and also identified the ramrod box, the oil and the oil cleaner as belonging to his father.

A neighbor of the deceased, Mr. Bassett, who lived just at the back of the deceased's house, testified that he arrived at the scene of the death just as the ambulance attendants were removing the body. This witness testified that the gun was lying below the steps on a mat, that the piece or part of the shotgun that holds the barrel to the stock was lying about middleways of the porch; that he saw the ramrod lying across the wooden flower box, and a can of oil was sitting on the porch by the flower box, and a can of cleaning fluid was sitting at the end of the flower box. He further testified that a fishing tackle box was sitting on the other side of the flower box, three or four feet from the first of the back steps; that he also saw some rags lying around on the porch. This witness further testified that the wooden underpart of the shotgun was extremely hard to put on. This witness testified that he tried to put this piece on the gun after it was all over with, but never got it back in place; that it had evidently not been off in quite a long while.

One of the plaintiff's attorneys testified that in the month of July he was authorized to make a second demand on the defendant for payment on the insurance policy; that on July 29th he sent this demand by certified mail, but that he received no reply, whereupon about September 17th he wrote another letter making a demand for payment under the terms of the policy; that he never received any answer except a letter written in November by the defendant's attorney. This letter stated that the investigations of the death had not then been fully brought to conclusion and that the evidence in the possession of the company at that time indicated that the company would be required to take the position that the death was not accidental but that circumstances indicated that the death was by suicide. This letter went on to state that from the evidence on hand at the time the attorney was not in position to advise the company to pay on the basis of either the group life insurance or the accidental death coverage. This letter further stated that it was not to be regarded as a final declination of coverage on the part of the company, and it returned the certificate under the group policy which covered the deceased.

Mr. James K. Rankin, of Atlanta, an attorney who has been practicing law since November of 1928, handling insurance cases both for plaintiffs and defendants, testified, in summary, that a fair fee in a suit of the type brought by the plaintiff here would be $2,500, or 25% of the amount sued for, which in this case was $10,000.

The defendant's first witness, Lt. Norred, a detective of the city of LaGrange, Georgia, testified that he investigated five or six homicides per year. He testified that the broken place at the top of the butt of the shotgun appeared to be a recent break but he could not find the broken piece; that he unbreeched the gun and found two shells, the shell in the right-hand barrel having been fired. He testified as to the manner in which the safety mechanism of the gun goes on automatically when the gun is unlocked so that it cannot be opened, that when the gun is unbreeched the firing pins will not stick out into the firing chamber. He further testified that after the gun is loaded and the breech closed, the safety mechanism is on "safety," and that in order to fire it after the gun is loaded and closed the safety has to be moved into firing position. He demonstrated that if the safety is in safety position a severe pull of 10 pounds' pressure would not make the gun fire. He also testified that when he was called to the Templeton house at the time of death, he beat the gun on the floor in an effort to determine whether the gun would fire by means of some movement other than pulling the triggers when the gun was neither on "safety" nor in firing position. That with the safety in firing position and bouncing it on the floor very hard, he was unable to make it fire. He identified the photograph taken of the deceased (defendant's Exhibit 6), which was a picture of the body of the deceased, as having been taken at the Maddox Funeral Home in his presence, and that an examination of the body showed a wound in the right chest, and that immediately next to the wound was a circle which was a bruise — a blood-shot spot which in his opinion was placed on the chest of the deceased immediately adjacent to the wound by the left-hand barrel of the gun. Lt. Norred further testified that the wound slanted up into the chest, and, demonstrating the angle of slant with the gun pointed to his chest, he could extend his right hand to the right trigger with the first finger and that the right trigger is the forward trigger of the gun. It was the witness's opinion that the gun would fire with the fore-end off. He could not get it to fire with the safety in the arm position. He further stated that the gun would not cock without the wooden fore-end being on the gun. As to the piece of the gun he found lying on the porch after the death, Lt. Norred testified that it was possible for the deceased to have held onto it as he fell backward and dropped it on the porch.

Lt. Norred testified that he found no evidence of fresh oil or cleaning fluid in the left-hand barrel of the gun, and that the right-hand barrel showed evidence of having been fired; further, that normally a person would take the gun apart in order to clean it, and if this was done the fore-end would have been taken off and that there would be no occasion to replace the fore-end of the gun until the cleaning process had been completed.

The medical examiner of Troup County, Dr. Krafka, examined the body of the deceased about 8 p. m. on the evening of the death, and identified the photograph of the body. He found that the wound in the chest was round, the edges were rolled inward, and that after washing off the surface he found a black rimming of the wound. Such a black rimming was due to the burning of the tissues from the gas which comes forth with a gun blast. Dr. Krafka described the rim to the right of the wound as a depression which showed some puddling of the blood from the wound which lay to the deceased's left. This depression was noticed to have a discolored or bruised coloration at the bottom of the rim, and it was round. The edges of the wound were said to be evenly charred all around the wound and there were no scatter marks in the vicinity of the wound or anywhere else on the chest. The wound was 1.7 centimeters in diameter. In his opinion the death from such an injury would be immediate. He further testified that he, Assistant Police Chief Hawkins, and Lt. Norred all examined the safety mechanism of the gun, and they discovered it would not fire unless the safety were advanced to firing position, that they all tried to make it fire by hitting the gun on the floor when the gun was in firing position, but that it would not release itself with the safety on or with the safety off. Dr. Krafka's opinion was that the weapon at the time of the shot was, of necessity, very close to, if not in actual contact with, the chest. He formed the opinion that the mark to the left of the wound was an indentation of the skin and tissues created by the second barrel of a double-barreled shotgun. His conclusion that the gun was close to, if not in contact with, the chest came from the fact that the edges of the wound were blackened by the gas and that the shot had not spread so that there was no secondary spotting of shot but only the main entry, and, thirdly, the diameter of the wound itself. His opinion was that the shot entered the body at approximately a 90-degree angle. He examined the body at the funeral home and loosened the arm of the deceased to see if it were possible for him to have reached the triggers. This examination revealed that the deceased could have reached them with his finger or thumb and that this was demonstrated by an actual test with the gun which Lt. Norred had in his possession. Dr. Krafka found blood stains on the end of the gun.

A gunsmith, Mr. Levis, after qualifying as an expert, testified that he had examined the death gun; that he had disassembled it; that when the gun is unbreeched, the safety lever operates automatically; that the safety overrides the tops of the triggers so that it blocks the triggers from the "sears"; that the safety mechanism was mechanically perfect; that this particular type of gun has a weak fore-end locking mechanism which means that the fore-end is never retained too securely on the barrel; that the gun could not be cocked with the fore-end removed, but that the gun could be fired with the fore-end off provided it had previously been cocked; and that he had tested the gun by jarring it on the floor and that it could not be jarred so as to fire. He testified that in his opinion the gun would not go off when the safety was in the safe position; that neither barrel of the gun had been cleaned prior to firing. On cross-examination the witness admitted that double-barreled shotguns do go off accidentally from time to time and that when they do go off accidentally it is usually the right barrel which goes off because it has the "lightest of the two trigger pulls." The witness further admitted that during his examination he caused the right-hand barrel to be discharged by jarring it with a plastic hammer, and that the gun could be fired accidentally by hitting the trigger with an object of any sort; that if the gun were left cocked it would be possible either accidentally touching it with the hand or brushing it with an object to push it into the firing position; that it would be possible for someone to undertake to clean the barrels of the gun without taking them apart; that the gun will fire even though the fore-arm were off of it; that he had on occasion accidentally fired a gun by striking a trigger (but not when it was loaded).

After all the evidence was introduced by both parties, the defendant moved for a directed verdict, which was overruled. The jury returned a verdict for the plaintiff for $10,000 plus interest, plus a penalty of $2,500, and attorney's fees of $2,500. The defendant filed a motion for a new trial on the general grounds, which was amended by adding grounds 4 through 10, as follows:

The fourth ground complains of the court's instruction to the jury regarding the possibility of returning a verdict for penalties and attorney's fees.

Special Grounds 5 to 10, inclusive, of the motion for new trial complain of those portions of the charge identified in the opinion on the grounds that:

Ground 5 — the instruction was erroneous in that the evidence authorized the inference that the death of the insured was due to suicide and that where evidence is introduced which would authorize the inference that the death was due to suicide, any presumption in law which might otherwise exist that the death was not due to suicide would disappear entirely and that it was, therefore, error to instruct the jury that the plaintiff was aided by the presumption that the death of the insured was not due to suicide.

Ground 6 — that this instruction is erroneous as a matter of law in that there does not exist in this State any presumption whatever that the cause of death in any case of this type was accidental, and further that where evidence is introduced which would authorize the inference that the death was by suicide, the presumption of accidental death or against suicide would not be available to the plaintiff.

Ground 7 — that this instruction is erroneous in that it gives the plaintiff the benefit of the presumption that the insured met his death by accident and that there is no such presumption in this State, and furthermore that where evidence has been introduced authorizing the inference that death has been caused by suicide, the presumption, if such exists, is not available to the plaintiff.

Ground 8 — that this instruction is erroneous in that there is no presumption in this State that death results from accident and that where there is evidence to overcome the presumption against suicide it is error to instruct the jury that the question of the amount of evidence sufficient to overcome any presumption is for the jury to determine.

Ground 9 — that this instruction is error on the grounds that there was evidence submitted to authorize the inference that the death of the insured was due to suicide, and thus the presumption against suicide disappeared at the conclusion of all the evidence in the case, and that insofar as the court has here instructed the jury that the presumption against suicide is overcome only by evidence which excludes with reasonable certainty any hypothesis or theory of death by accident, it is contended that the court was in error in this instruction because there exists under the civil law of Georgia no test of exclusion with reasonable certainty with respect to any issue which has to be carried by any party to a case, but that the only test is the test of preponderance of the evidence. It is further contended that the quoted instruction places the burden on the defendant to exclude with reasonable certainty any hypothesis or theory of death by accident, whereas instead, the only burden placed on the defendant was the burden to produce such evidence as would authorize the inference that the death was due to suicide.

Ground 10 — that there was no occasion for the court to instruct the jury in this language, since the court had already given a very similar instruction and this was an unnecessary repetition of the principle of law which had already been made clear to the jury. Further complaint is made regarding this instruction on the ground that it was error for the court to make any reference whatever to this statement of law, for the reason that this statement of law is a guide for the court in determining whether or not an issue of fact exists in a case such as this for submission to the jury, and that it is the court's responsibility to determine whether or not there is in the record sufficient evidence to allow the plaintiff to go to the jury in the first place, and sufficient evidence on the part of the defendant to authorize the inference of suicide in the second place, and, in short, the question of who has the burden of introducing the first evidence and of who has the burden of going forward with the evidence would be solely for the court to determine.

After hearing, the trial court overruled the motion for a new trial as amended, to which order the defendant excepted.

The defendant also filed a motion for judgment notwithstanding the verdict, which was overruled, and the defendant excepted to this ruling.

BELL, Judge.

1. In this case the plaintiff asserts that the insured came to his death solely by external, violent, and accidental means, in that the double-barreled shotgun which he was in the process of cleaning was discharged by accident, causing his instant death. The defendant, on the other hand, contends that the insured met his death through intentional self-destruction by suicide, and thus the defendant is relieved from liability by reason of Code § 56-909, which provides, "Death by suicide, or by the hands of justice, either punitive or preventive, shall release the insurer from the obligation of his contract." From the cases which both parties have amassed in their briefs, coupled with the additional cases the court has examined, it appears that the area of this particular conflict is one of the most fought-over battlegrounds of the law. According to the great weight of authority, in determining whether or not the insurer is liable under these circumstances, where the policy provides for benefits in case of death by external, violent, and accidental means, where the means producing death were external and violent, there is a presumption, in the absence of evidence to the contrary, that the means were also accidental. 12 A.L.R. 2d 1250, 1276. This presumption has been applied in a variety of situations, including death by asphyxiation, by automobile accident, by drowning, by explosion, by falling, by gunshot wound, and in many other circumstances. Thus, "Cases of this sort have always been and will always be difficult. A human being is found dead; it is apparent that death was caused from a gunshot wound from a weapon found nearby, and that this gun was fired through some act of the deceased. But the question at once arises as to whether the wound was voluntarily inflicted with the intention of self-destruction or was the result of some unfortunate and involuntary mischance in the handling of the weapon. No other person has witnessed the event; there is no direct evidence to tell us what really happened. We can seek the answer only through the evidence of all the surrounding circumstances from which inferences may properly be drawn. And from these it is rare that conclusive or entirely convincing results are obtained." Clemmer v. Jefferson Standard Life Ins. Co., 9 F. Supp. 115, 121 (reversed in 79 F.2d 724; 103 A.L.R. 171). A study of many cases considering this problem indicates that the mental, moral, and emotional state of the deceased is an important factor in determining whether or not the jury could have concluded that the death was by suicide rather than by accident or vice versa. Thus, where the evidence indicated that the insured was happily married, devoted to his wife and child, a man of good character, prosperous in business, and there was no indication of intent to commit suicide, and where the firearm went off while he was sitting at his desk looking at some papers, it was held that the proof of death from the injuries received raised a presumption of death by accidental means. Metropolitan Life Ins. Co. v. Graves, 201 Ark. 189 ( 143 S.W.2d 1102). To the same effect, where the body was found with two pistols, see Aetna Life Ins. Co. v. Milward, 118 Ky. 716 ( 82 S.W. 364, 68 L.R.A. 285, 4 Ann. Cas. 1092).

In a case before this court where the evidence showed the insured died as a result of a gunshot wound but without further explanation as to the cause of death, it was held that the plaintiff is aided in carrying the burden by the presumption or inference that the death was by accident rather than by suicide. Schneider v. Metropolitan Life Ins. Co., 62 Ga. App. 148 ( 7 S.E.2d 772). In the Schneider case the evidence showed that the deceased was aiding a neighbor in catching a hog at the barn. Shortly thereafter a noise was heard, and the insured was found lying in the doorway of the barn. The evidence further revealed that there was a "kindly" blue spot on the forehead of the insured; that he never regained consciousness; that an automatic pistol was found a foot or two from where he was lying; that there were no powder burns on his flesh, but one witness was under the impression that he saw some powder burns on the hat of the deceased; that the doctor who examined the deceased testified that the range of the bullet was downward and that the pistol would have had to be a little more than horizontal with the handle to make that wound, and in his opinion the pistol was fired at close range; that the pistol had been sold to the insured about six months before his death; and that when the pistol was found near the body of the deceased the magazine had been taken out and was found on his person. There was found in the record evidence that the insured had always been a man of jovial and kindly disposition; he had a wife and two children; there was no marital or family trouble to worry him, and on the day of his death and shortly before, he appeared to be in the same unworried, jovial, and contented mood, and that there was nothing about his actions to indicate anything unusual or that he would take his own life. On the other hand, there was evidence that he had frequent attacks of kidney colic, which lasted some minutes during which he would have fits and suffer excruciating and intense pain and agony. There was also evidence that, until the day before his death, he had operated a store for another person on a fifty-fifty basis, and evidence indicating that he claimed that some time previously he had been robbed at the store and tied up, that these persons he accused were not convicted of robbery, and evidence that two or three days before his death he had a promise of two jobs and was going to take one of them but he didn't know which one. There was further evidence from which the jury might find that the deceased was $150 short in the settlement of his division of the profits in the store business. In the proof of death submitted to the insurer, the cause of death as signed by the plaintiff was stated to have been "gunshot wound self-inflicted." In that case the defendant contended that the evidence showed the insured had cause for committing suicide, and the fact that the deceased would have had to grip the pistol and squeeze it in order to pull the trigger shows that the same was not an accidental discharge of the pistol and, therefore, could not be an accidental death, and that the burden of the proof in the death of the deceased was not carried by the plaintiff to such an extent as to "show accidental death." The trial judge, on motion, granted a nonsuit, and the plaintiff excepted. This court there held that the petition as amended set out a cause of action and was not subject to any of the grounds of demurrer. In reaching this conclusion, it was pointed out that death might be the result of a gunshot wound self-inflicted and not be suicide, citing Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 ( 72 S.E. 295); Freeman v. Metropolitan Life Ins. Co., 35 Ga. App. 770 ( 134 S.E. 639). It was further held in the Schneider case that on proof of a violent death such as death from a gunshot wound, where there is no evidence from which it can be inferred whether the death was accidental or suicidal and, therefore, the evidence points equally either way, the presumption against death by suicide obtains and comes to the aid of the plaintiff, and the jury is authorized to find that the death is due to accident, but in a case where there is conflicting evidence as to whether the cause of death was accidental or suicidal and the jury would be authorized to infer from the evidence either way, this presumption disappears, although the fact upon which the presumption rests, which is a person's love of life rather than death, may be considered by the jury in arriving at a conclusion. After analyzing the evidence in the case, particularly the happy and jovial nature of the insured, his happy domestic status, and, on the other hand, his ill health, his overdrawing of the profits from the store, Presiding Judge Stephens, speaking for the court, stated, "It therefore follows, that, regardless of the presumption against suicide, and conceding that the evidence would have authorized an inference that the death of the insured was the result of suicide, the evidence was sufficient, considering the natural instinct of a man to love life, to authorize the inference that the death was not the result of intentional self-destruction; and the question whether the death of the insured was effected solely through external, violent, and accidental causes, or was the result of suicide, was properly one of fact for the jury, and not a question for the court." There it was held that the evidence was sufficient for the jury to find for the plaintiff, and that the trial court erred in awarding a nonsuit. In addition to the Schneider case, see also Peppers v. Sovereign Camp W. O. W., 53 Ga. App. 851, 854 ( 187 S.E. 215); Jefferson Standard Life Ins. Co. v. Bentley, 55 Ga. App. 272 (3), 279 ( 190 S.E. 50); Metropolitan Life Ins. Co. v. Kennedy, 55 Ga. App. 554 (12), 560 ( 190 S.E. 873).

On the recited facts in the Schneider case, the evidence which pointed to suicide is in all respects somewhat stronger than the evidence which points to suicide in the present case. We have reviewed the evidence on both sides minutely, and are constrained to the belief that the evidence here, while it might have authorized an inference that the death of the insured was a result of suicide, is also sufficient to authorize the inference that the death was not the result of intentional self-destruction. By way of succinct comparison, in this case there are present no motives whatever for suicide, while in the Schneider case there were some.

In Cox v. Independent Life c. Ins. Co., 101 Ga. App. 211 ( 113 S.E.2d 228), the insured was found dead almost in the middle of an unpaved roadway near his mother's house, with a bullet wound from his 22-caliber pistol entering about an inch over the right ear and exiting a little in back of the left ear. The pistol was in his hand and, according to the positive testimony of one witness, his thumb was on the trigger; there were powder burns on the right temple; the insured was married and living with his wife; he had no quarrels or domestic difficulties; he had entered into partnership in a new business within the past two weeks; he was very light-hearted and jovial; he always carried a pistol with him; he liked to drink, had begun drinking on Sunday night and on Monday was drunk. On Monday he was seen lying on the ground under a tree by a witness, and he was seen lying on the ground under a tree by a witness, and he offered the witness a drink. He was also drunk Monday afternoon; Tuesday morning he got up and drank some coffee about 6:30 in the morning; he had no breakfast, asked for his pistol, left the house at 8:30, and was found lying in the road later that morning with an empty whisky bottle near him. This court held that the facts of that case did not, especially in the absence of any reasonable motive for self-destruction, preclude as a matter of law the theory of accident, and it was, therefore, error for the court to grant a judgment for the defendant notwithstanding the verdict.

The evidence here sufficiently supports the jury verdict which found that the insured met his death by accidental means, and the motion for a new trial on the general grounds was without merit. The jury formulated its conclusions from the evidence, and we cannot say that they were wrong.

2. The essence of the objections to the charge of the trial court as raised by special grounds 5 through 10 of the amended motion for new trial is that under Georgia law there is no presumption of accidental death or against suicide, or that if there is one, it disappears when evidence is introduced by the defendant which would authorize the inference that the death of the insured was due to suicide and that here the defendant had introduced evidence from which the jury would be authorized to infer that the death was due to suicide and that the court erred in instructing the jury that the plaintiff is aided by the presumption that the death of the insured was not due to suicide. The trial court's instruction to the jury on this aspect of the case, which embraces completely all of the charge objected to by special grounds 5 to 10 inclusive, is, in sequence, as follows: [ Note: Although we quote this portion of the trial court's charge in full and in sequence, by interspersed brackets we shall identify the portions objected to by the various special grounds of the amended motion.] ". . . The burden which rests on the plaintiff to prove her case by a preponderance of the evidence, which includes the burden to prove that the death resulted from an accidental cause, remains on the plaintiff after the defendant has introduced evidence which would authorize the inference that the cause of death was suicide and this burden remains on the plaintiff throughout the trial. There is no burden on the defendant to prove by a preponderance of the evidence that the cause of death was suicide.

"In this same connection, I charge you, gentlemen, that in a suit to recover upon a policy of life insurance where the insurance company defends upon the ground that the insured's death was caused by suicide, the burden of proof is upon the plaintiff to show by a preponderance of the evidence that the death of the insured was caused by external, violent or accidental means within the terms and provisions of the policy. [ Begin ground 5] The burden of proof which rests upon the plaintiff to show that the death of the insured was caused by the external, violent and accidental means and that the defendant is liable under the terms of the policy is aided by the presumption that the death of the insured was not due to suicide. [ End Ground 5, begin Ground 6] Where there is evidence that the cause of death was from external, violent or accidental means and the evidence is conflicting as to whether death was due to accident or to suicide and the evidence is consistent with the reasonable hypothesis that the death was due to accident rather than suicide, there is a presumption that the cause of death was accidental and was not caused by suicide. Whether the death of the insured in this case, Lawrence H. Templeton, was due to accidental means or was due to suicide is a question of fact for you gentlemen of the jury to decide.

[ Begin Ground 7] "I charge you that if the evidence adduced before you on the trial of this case points equally and indifferently to the theory of death by accident or death by a wound intentionally self-inflicted, or suicide, the theory of death by accident is to be adopted by you rather than the theory of suicide.

"I charge you further that where the physical facts, the surrounding circumstances and the consideration of all the evidence in this case leaves the question of suicide in doubt in your mind, the plaintiff would be entitled to recover on the presumption of accidental death. [ End Ground 7]

[ Begin Ground 8] "I charge you further that the amount of evidence sufficient to overcome the presumption that death was from natural causes or accident rather than suicide is purely a question for you gentlemen of the jury to determine. [ End Ground 8, begin Ground 9] And in this connection, I charge you further that a conflict in the evidence would not destroy the presumption against suicide, but that presumption remains throughout the case and is overcome only by evidence which excludes with reasonable certainty any hypothesis or theory of death by accident. [ End Ground 9]

[ Begin Ground 10] "In a suit on a policy which provides for indemnity where death results from bodily injury effected through external, violent and accidental causes, where the plaintiff has produced enough evidence which, together with the so-called presumption against suicide, is sufficient to authorize the jury to find for the plaintiff upon the issue of accidental or suicidal death, it is then incumbent upon the defendant to produce only evidence in rebuttal, or denial, of the presumption such as evidence which would authorize the jury to find that death was due to suicide and not to accident. The burden on the defendant is not the burden of proof to establish suicide by a preponderance of the evidence but is the burden only to go on with the evidence. In the parlance of checker players, it is the defendant's move. The burden still remains on the plaintiff to make out her case by a preponderance of the evidence, which includes the burden of showing accidental death by a preponderance of the evidence. This burden, notwithstanding the defendant has introduced such rebuttal evidence, remains on the plaintiff throughout the entire trial." [ End Ground 10]

The defendant especially attacks that portion of the charge which says there is a presumption that the cause of death was accidental, contending that as a matter of law there does not exist in this State any presumption that the cause of death in any case was accidental. With this contention we do not agree, for in a case such as this where death occurred externally and violently from the discharge of a double-barreled shotgun and where suicide is the defense, the language in the charge which says there is a presumption that the cause of death was accidental merely states in reverse and is synonymous with the relevant presumption against suicide. See New York Life Ins. Co. v. Jennings, 61 Ga. App. 557 (3) ( 6 S.E.2d 431), where the issue of suicide was not involved.

An examination of the case of Mutual Life Ins. Co. v. Burson, 50 Ga. App. 859 ( 179 S.E. 390) reveals that all but the last paragraph of the trial judge's quoted charge was taken in substantially identical language from that case, while the last paragraph is lifted almost verbatim from the opinion in the case of New York Life Ins. Co. v. Ittner, 59 Ga. App. 89, at p. 100 ( 200 S.E. 522). Thus, the entire charge of the trial judge on this aspect of the case was in language which previously has been approved by this court upon factual situations substantially similar to those in the present case. Ordinarily it would seem that this combination of circumstances would require approval of the charge here, and certainly this would be the case were we not constrained to the conclusion that these two cases are in conflict.

Indeed, after reviewing the cases dealing with the question of the presumption against suicide, it is manifest that presently the Georgia law on the point is nothing less than a welter of confusion and contradiction. This is an untenable situation which is unfair to the trial courts, lawyers, and the litigants alike, all of whom have the right to be able to determine from the statutes and the decisions of the courts precisely what the law is.

Four of the leading decisions on this subject are Mutual Life Ins. Co. v. Burson, 50 Ga. App. 859 ( 179 S.E. 390); Metropolitan Life Ins. Co. v. Kennedy, 55 Ga. App. 554 ( 190 S.E. 873); New York Life Ins. Co. v. Ittner, 59 Ga. App. 89 ( 200 S.E. 522); and Schneider v. Metropolitan Life Ins. Co., 62 Ga. App. 148 ( 7 S.E.2d 772). In each of these cases the opinion was delivered for the court by Judge Stephens, who, it cannot be gainsaid, was certainly one of the most able and respected judges ever to grace the Georgia bench. And yet, these four cases, seemingly as a tribute to human frailty, collectively add to the presently confused and contradictory status of the Georgia law as to the scope and limitations of the presumption against suicide. Yet, these four cases are so exhaustive in content that they furnish a sufficiency of reasoning and principle from which a correct collation of the Georgia law on the point may be formulated.

The first of these cases, the Burson case, we think has contributed mostly to the confusion in our law, in that it endorsed a charge given by the trial court which approved consideration of the presumption against suicide in a case where the evidence was conflicting and where a finding by the jury of either accidental death or of suicide was authorized by the evidence. In a situation such as this, the presumption having disappeared, it is erroneous to charge at all with respect to the presumption against suicide. Furthermore, the Burson case expressly approved the principle that a conflict in the evidence would not destroy the presumption against suicide, but held that the presumption remains throughout the case and is overcome only by evidence which excludes with reasonable certainty any hypothesis or theory of death by accident. In these respects, the Burson case is in direct conflict with the Schneider case, which expressly holds that the presumption cannot continue in the presence of conflicting evidence, for the presumption disappears. Although Judge Stephens, in the Ittner case, attempts to reconcile the Burson case by expressly citing the Burson case and saying that any statement in the Georgia decisions that the presumption against suicide obtains throughout the entire deliberations of the jury, to be counted as evidence even though there be conflicting inferences to be drawn from the evidence as to the cause of death, should be interpreted to mean that the fact that a person loves life better than death, the fact on which the presumption rests and out of which it springs, may be considered by the jury in arriving at the truth of the issue presented. But this is not a suitable explanation, and is not persuasive, and is itself conflicting and confusing since obviously the presumption cannot continue in the presence of conflicting evidence under the authority of the Burson case and disappear and vanish in the face of such evidence as in the Schneider and Ittner cases.

We think that the Ittner case more nearly states the law as it exists, and it appears to be sufficiently exhaustive in its reasoning and in its statements on principles. We specifically disapprove and overrule those portions of it (1) which attempt to explain and correlate the misstatements and incorrect enunciations in the Burson case, and (2) which state that, in every case, " — the jury may in their discretion, without proof, regard and give effect to the fact upon which the presumption against suicide rests, which is the well-known fact that a person prefers life to death." We hold the correct rule to be that where the presumption has vanished, the fact upon which the presumption rests, that a person prefers life to death, must itself be proved in each case as pertaining to the individual whose demise is in question before the jury may be authorized to consider it. The fact upon which the presumption rests having been proved as a fact standing alone without reference to the presumption, it is proper for the jury to consider it; in absence of such proof, it is not. But even where the basis is separately proved, it is erroneous to permit the jury to consider it in its relation to the presumption where the presumption has disappeared. It is judiciously capricious and erratic to merely close the front door to a vanished presumption and to approve it and welcome it through the back door. Since we feel that the Burson case incorrectly states the law, we also specifically overrule it insofar as it may conflict with the views expressed here.

Likewise, the case of Metropolitan Life Ins. Co. v. Kennedy, 55 Ga. App. 554, 557 (4) ( 190 S.E. 873) seems to erroneously follow in part the Burson case, and to the extent that it does so, it is specifically overruled. We think the correct rules to be gathered from the Georgia cases would authorize the trial judge to charge upon the presumption against suicide and in favor of accident only in those cases involving a defense of suicide (a) where no evidence other than that death occurred by violent and external means is introduced as to the cause of death, in which event the presumption will carry the plaintiff's prima facie case, or (b) where evidence is introduced which "points indifferently" to either result, which basically means no more than no evidence at all, in which event the presumption will again apply and would make out a prima facie case for the plaintiff, or (c) where the plaintiff relies solely upon the presumption against suicide and has not abandoned it by introducing evidence tending to show affirmatively that the decedent did not die by self-destruction, so that the evidence which the plaintiff has introduced shows only that the decedent died as a result of violent and external means, and the defendant introduces evidence tending to show that death occurred by suicide, if the plaintiff offers further evidence which, if believed by the jury, would impeach the witness offering the testimony of the defendant tending to show suicide, the trial judge, after charging the jury properly upon impeachment, would be authorized to instruct the jury that if they found the defendant's witness offering the testimony tending to show suicide to have been impeached, the verdict should be awarded to the plaintiff, or (d) where the plaintiff relies solely upon the presumption against suicide and has not abandoned it by introducing evidence tending to show affirmatively that the decedent did not die by self-destruction so that the evidence which the plaintiff has introduced shows only that the decedent died as a result of violent and external means, and the defendant introduces evidence tending to show that death occurred by suicide, the trial judge would be authorized to instruct the jury that if they disbelieved the defendant's evidence tending to show suicide, or if the jury found that the defendant's evidence did not support the theory of suicide, the verdict should be awarded to the plaintiff.

With respect to (c) and (d) above, in instructing the jury under either of them, the trial judge should not use the phrase, "presumption against suicide." This permits the full application of the presumption and eliminates the confusion and possible prejudice which might be occasioned by using the word in this type of case.

In the vast majority of cases, including the one here, where each of the parties has introduced evidence as to the cause of death which will support inferences in favor of accident on the one side or suicide on the other, it would be error for the trial court to charge on the presumption, since the presumption disappears wholly and completely under these circumstances.

Notwithstanding the disappearance of the presumption, we consider it to be proper for a trial judge to instruct the jury, where there are sufficient facts upon which to base the charge, that the ultimate fact to be determined by them is whether the deceased possessed the innate characteristics attributable to the mass of humanity of loving life and having the preference of life rather than death. The jury then could consider these elements in reaching their verdict.

It is erroneous to allow a presumption of law to remain in a case arbitrarily and unreasonably where it has disappeared in the face of rebuttal testimony. This is true for one sound reason, among others, that this would possibly amount to a denial of the due process clause of the Fourteenth Amendment to the Constitution. See Western Atlantic R. v. Henderson, 279 U.S. 639 ( 49 S. Ct. 445, 73 L. Ed. 884). Indeed, it is erroneous for the judge to mention to the jury the existence of a presumption where it is not existing, but has vanished in the face of rebutting evidence. See Seaboard Air-Line Ry. Co. v. Fountain, 173 Ga. 593 ( 160 S.E. 789); Macon Dublin Savannah R. Co. v. Stephens, 66 Ga. App. 636 ( 19 S.E.2d 32). Furthermore, to allow a presumption to remain in a case such as this would very likely mislead the jury into believing that they are authorized to disregard the evidence or to add the presumption to the evidence and to return its verdict based in whole or in part on the presumption. While the weighing and sifting of the evidence, and the drawing of inferences and conclusions in the process, are among the prerogatives of the jury, an instruction of law which sanctions a complete ignoring of the evidence by the jury, or sanctions an unlawful addition to the evidence at the whim of the jury, transcends the proper functioning of the jury and constitutes reversible error.

Since the case before us contains a charge on the presumption against suicide after evidence appeared in the case from which an inference of suicide could be drawn and thus authorized the jury to disregard the evidence, and since this charge was based largely on those portions of the case of Mutual Life Ins. Co. v. Burson, which we have specifically overruled, it follows that the trial court erred in charging on the presumption of law against suicide, and the judgment overruling the motion for a new trial must be reversed.

It is to be clearly understood that the holdings in this case with respect to the presumption against suicide and in favor of accident are restricted specifically to this particular presumption. No ruling is made or intended one way or another as to any other presumption not involved in this case.

3. The cases of Mutual Life Ins. Co. v. Burson, 50 Ga. App. 859 ( 179 S.E. 390); Metropolitan Life Ins. Co. v. Kennedy, 55 Ga. App. 554 ( 190 S.E. 873); New York Life Ins. Co. v. Ittner, 59 Ga. App. 89 ( 200 S.E. 522), and all other cases of this court insofar as they may conflict with the views expressed here are specifically overruled.

4. The fourth ground of the amended motion for new trial complained of the court's instructing the jury regarding the possibility of returning a verdict for penalties and attorney's fees, contending that the evidence, oral and documentary taken together, reveals that the defendant had a proper and legitimate defense. The attorney's fees and penalties arise by virtue of Code § 56-706, which provides, in substance, that when an insurer shall refuse, in bad faith, to pay within 60 days after demand has been made by the holder of the policy on which a loss has occurred, the insurer shall be liable in addition to the loss, to pay not more than 25% of the liability plus reasonable attorney's fees. The interpretation applied to this statute in numerous cases is that refusal to pay in bad faith means a frivolous and unfounded denial of liability. If there is any reasonable ground for the insurer to contest the claim, there is no bad faith. Pearl Assurance Co. v. Nichols, 73 Ga. App. 452 ( 37 S.E.2d 227). Where the insurer has reasonable grounds for contesting the liability, there is no refusal to pay in bad faith within the meaning of this statute, and it is error for the trial court to charge the jury under this Code section that they may return a verdict for penalties and attorney's fees. Gulf Life Ins. Co. v. Moore, 90 Ga. App. 791, 792 (6) ( 84 S.E.2d 696). The case of Liner v. Travelers Ins. Co., 50 Ga. App. 643, 645 (5) ( 180 S.E. 383), seems to imply that where the insurer waits six months after proof of loss and then refuses payment, a jury question arises as to whether the refusal to pay was in bad faith or not. In the present case there was a similar delay, but we feel the present case is distinguishable from the Liner case because there it does not appear that the insurer had any reasonable grounds for defending the insured's demands, while here there was evidence introduced from which the jury, if it had been so inclined, could have returned a verdict of suicide, which would have been a defense to the insurer under the Georgia law. The trial court having erred in its charge relating to penalties and attorney's fees, this ground of the amended motion for new trial is meritorious.

5. There having been evidence to support the verdict as discussed and determined in division 1 of this opinion, the trial court did not err in overruling the motion for a judgment notwithstanding the verdict.

The judgment of the trial court overruling the amended motion for a new trial is

Reversed. Felton, C. J., Townsend, P. J., Carlisle and Jordan, JJ., concur. Nichols and Frankum, JJ., dissent.

BELL, Judge.

ON MOTION FOR REHEARING.

BELL, Judge.

1. In her motion for rehearing the defendant in error vigorously protests that this court has patently confused evidence pointing "indifferently" to either accident or suicide with "no evidence" in stating in division 2 of the opinion that the correct rules ". . . to be gathered from the Georgia cases would authorize the trial judge to charge upon the presumption against suicide and in favor of accident only in the cases involving a defense of suicide . . . (b) where evidence is introduced which `points indifferently' to either result which basically means no more than no evidence at all, in which event the presumption will again apply and would make out a prima facie case for the plaintiff." This confusion, it is urged, is made obvious by the decision of the Supreme Court in Travelers Ins. Co. v. Sheppard, 85 Ga. 751, 802 ( 12 S.E. 18).

Mr. Justice Bleckley, in delivering the opinion for the Supreme Court in the Sheppard case, at p. 802 (29), stated: "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." In New York Life Ins. Co. v. Ittner, 59 Ga. App. 89 ( 200 S.E. 522), beginning on page 93, this court considered the quoted statement from the Sheppard case exhaustively. Without repeating what was said in the Ittner case, we adopt it subject only to the exceptions noted in the main opinion here. Accordingly, we reassert that where there is evidence authorizing a finding that a particular person took his own life, a jury is not authorized to disregard this testimony by the carte blanche process of adding to whatever evidence there is that the person did not commit self-destruction the ex parte fact that people generally prefer to live rather than to die. But we do say that a jury, in connection with other facts tending to show that the person did not take his own life, may consider proved facts which show that the particular person involved had no apparent reason for taking his life and that he loved life and preferred to live rather than to die.

One other thing might be said with reference to the statement in the Sheppard case as applied to the contention of the defendant in error in her motion for a rehearing, and that is that if we were to construe the language to mean that the evidence points with equal consistency to two opposing conclusions, we would then run head-on into the rule of law that where such a situation exists the party having the burden of proof cannot prevail. We do not go this far. See Taylor v. State, 44 Ga. App. 387, 417 ( 161 S.E. 793) and the many subsequent civil cases following the principle.

Furthermore, in the Sheppard case the court was discussing the propriety of the denial of a nonsuit, and we are convinced that this court in the Ittner case correctly construed the statement in the Sheppard case, and there correctly stated the law with the exceptions which we have noted in this opinion.

2. The crux of the decision in this case is that upon the submission of evidence by the defendant which would authorize a finding of suicide, the presumption vanishes as a substantial matter which the jury may take into consideration or use as a aid in evaluating either the evidence of the defendant seeking to establish suicide or that of the plaintiff seeking to establish accident. It is in this sense only that the words, "vanishes" or "disappears," are used throughout this opinion with relation to the presumption — with only one exception. This one exception is that the presumption is totally obliterated and vanishes completely where a plaintiff abandons the presumption by introducing additional evidence as to the cause of death other than the mere fact of death by violent and external means.

The respective motions for rehearing filed by the parties are denied.