Opinion
October 7, 1935.
November 25, 1935.
Evidence — Presumptions — Suicide — Permissible consideration — Insurance — Death through external, violent and accidental means — Oral evidence — Question for jury.
1. In an action on an insurance policy providing for compensation for death of the insured effected through external, violent and accidental means, the burden is on the plaintiff to prove all the operative facts by a fair preponderance of the evidence. [388]
2. Where, in such case, the defense is suicide, the necessary proof-element of accidental death is not supplied on behalf of proof, prima facie, by the so-called presumption against suicide.
3. The so-called presumption against suicide is not a legal presumption binding on the jury prima facie till disproved nor is it a probative fact but it is for the jury a merely permissible consideration of the nonprobability of death by suicide; it is not evidence and must not be substituted for evidence. [387-8]
4. Where the evidence offered by the plaintiff on a material point is oral, the credibility of the witnesses is a matter for the jury, and a verdict may not be directed in favor of plaintiff. [387]
Argued October 7, 1935.
Before FRAZER, C. J., KEPHART, SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.
Appeal, No. 7, March T., 1936, by plaintiff, from judgment and order of C. P. Butler Co., March T., 1931, No. 65, in case of Freda L. Marlowe v. Travelers Insurance Company of Hartford, Connecticut. Order affirmed.
Assumpsit on insurance policy. Before GEARY, P. J., specially presiding.
Verdict directed for plaintiff. Motion for new trial.
The facts are stated in the opinion of the lower court, GRAFF, P. J., specially presiding, as follows:
This action was instituted by the plaintiff upon a certain policy of insurance issued upon her husband by the defendant company. Said policy had an additional indemnity contract attached thereto, by which the insurance company agreed that if the death of the insured should result from bodily injuries effected directly and independently of all other causes, through external, violent and accidental means, it would pay to the plaintiff, as beneficiary, the sum of $4,000. Upon trial of the case the court directed a verdict in favor of the plaintiff. The defense raised was that the deceased came to his death as a result of suicide. This matter now comes before us upon motion for a new trial.
Albert H. Marlowe came to his death on January 26, 1930. He was found lying on his bed in an upstairs room, half dressed, on a Sunday afternoon, with a bullet hole in the middle of his forehead, and a revolver lying on the bed, near his outstretched hand. The case had been previously tried, with the result of a verdict in favor of the defendant. Upon appeal to the Supreme Court it was reversed, upon the ground of error committed in the admission of evidence, and error in the affirmance of a point to the effect that if the jury believed that the plaintiff murdered her husband, she could not recover. The Supreme Court held that there was no evidence upon which to base such an instruction to the jury. In the opinion of that court it was stated as follows: "There is no evidence in the record before us to sustain a finding of either suicide or homicide. The testimony strongly indicates that he accidentally shot himself while handling a revolver."
Apparently the judge upon the trial thought this statement to be equivalent of directing a verdict in favor of the plaintiff. With this conclusion we cannot agree. A statement in the charge, as follows, "In all cases such as this, where the exact cause of death is not known, but is the result of external injuries, the presumption of law is that death was due to an accident, and, without more, this would be sufficient upon which to base a verdict," is clearly in conflict with the case of Watkins v. Prudential Ins. Co., 315 Pa. 497. The court there stated: "But, to charge the jury that after plaintiff proved the insured's death through external and violent means, the balance of proof required to maintain the cause of action, that is, 'the necessary element of accidental death is prima facie "supplied by the presumption against suicide," is erroneous.' "
The presumption against intentional death cannot be considered prima facie proof. The burden remained upon the plaintiff to prove her case. The so-called "presumption against suicide" does not have the weight of a probative fact. It can be considered as nothing more than merely a permissible consideration, or argument, of nonprobability of death by suicide.
In the case of Walters v. The W. S. Life Ins. Co., 113 Pa. Super. 221, 225, it is stated as follows: "The court instructed the jury, in substance, that it was incumbent upon the plaintiff to prove that death was due to an accident, and in determining that question the plaintiff was entitled to the presumption that the insured did not take his own life; that if the jury was satisfied by the fair weight of the evidence that death was accidental then the burden of producing evidence that the fatal wound was intentional and self-inflicted would pass to the defendant. We think that was a correct statement of law."
Had the Supreme Court been of the opinion that the plaintiff was entitled to a directed verdict when the matter was before it, undoubtedly it would have said so. In a precisely similar case before the Superior Court, although a directed verdict was asked for the plaintiff, it was refused.
The testimony offered by the plaintiff was verbal, and, in all such cases, the credibility of the witnesses is a matter for the jury. In the light of this rule, and with the settled law that the "presumption against suicide" is nothing more than an argument, or an inference, in its support, without the effect of being a presumption of law, we are clearly of the opinion that the court was in error in directing a verdict for the plaintiff in this case.
Verdict set aside and new trial ordered. Plaintiff appealed.
Error assigned was granting of new trial.
Dale B. Painter, of Painter Painter, with him W. H. Martin and A. R. Cingolani, for appellant.
J. Campbell Brandon, with him W. D. Brandon and F. Clair Ross, for appellee, were not heard.
The order of the court below granting a new trial is affirmed upon the opinion of Judge GRAFF, specially presiding. The trial judge's direction of a verdict in favor of plaintiff was obviously based upon the misconception of the import of a sentence in the opinion of Mr. Justice SCHAFFER when this case was previously before us in 1933 ( 313 Pa. 430). It was also based upon a misunderstanding of the rule we laid down in Watkins v. Prudential Ins. Co., 315 Pa. 497, 173 A. 644. We there distinctly pointed out that in an action on an insurance policy where the insured came to his death "through external, violent and accidental means" and where the defense is suicide, that the burden to prove all the operative facts by a fair preponderance of the evidence rests upon the plaintiff, that the necessary proof-element of accidental death is not supplied, prima facie, by the so-called "presumption against suicide," that what is often thus miscalled "a presumption against suicide" is not a legal presumption binding on the jury prima facie till disproved nor is it a probative fact but it is for the jury a merely permissible consideration of the nonprobability of death by suicide; it is not evidence and must not be substituted for evidence.
Order affirmed.