Opinion
No. 227.
May 6, 1927. Appellee's Motion for Rehearing Denied July 1, 1927.
Appeal from District Court, Eastland County; Elzo Been, Judge.
Action by Hugh Jennings and others against the Sovereign Camp of the Woodmen of the World. From a judgment for defendant, plaintiffs appeal Reversed and remanded.
Turner, Seaberry Springer, of Eastland, for appellants.
Owen Owen, of Eastland, for appellee.
Appellants as beneficiaries brought suit to recover upon a policy of insurance upon the life of W. R. Jennings. The policy contained a stipulation prohibiting recovery by the beneficiaries in event of suicide, and the appellee pleaded suicide as a defense. Upon trial of the case, the jury resolved the issue of suicide against the beneficiaries under the policy; hence this appeal.
We have reached the conclusion that appellants' first assignment of error must be sustained. This assignment complains of the action of the court in permitting appellee to introduce in evidence a certain report of the local camp of the Woodmen of the World concerning the death of the member, W. R. Jennings. This report is apparently on a regular form containing blanks to be filled in with information relating to the death of a member, and the particular item of this report objected to reads as follows: "The cause of death was `hanging by bailing wire."' The only issue raised in this cause, either by the pleadings or the evidence, is whether or not the deceased committed suicide. The burden of proving suicide rested upon the appellee, and it must be assumed that the purpose of offering the report above mentioned was to aid appellee in its burden of proof. The document appears to be an ex parte, unsworn statement of certain officers of the local camp of the lodge, who are not shown to have any direct actual knowledge of the facts set forth in the report, and this character of testimony violates some of the well-known rules of evidence. It is argued by the appellee that the error, if any, is not harmful, because other uncontroverted evidence discloses that plaintiff's death was caused in just the exact manner set forth in this report. No one actually witnessed the death of W. R. Jennings and his body was found suspended from a rafter in a barn by a bailing wire around, or partly around, his neck; the neck being broken. The objectionable testimony above mentioned, to our minds, would furnish the appellee with basis for more argument and the jury with more evidence to consider on the issue, and might, as suggested by appellants, tip the scales in favor of the appellee. We believe that it was introduced for that purpose, and that it is harmful testimony, and should have been excluded.
Also we sustain appellants' assignments of error relating to the exclusion of certain rebuttal testimony offered by appellants. The appellee proved that the deceased had received a life insurance policy through the mails about an hour before his death; this evidence would be permissible as a circumstance tending to establish suicide, as it is reasonable to believe that a man, no matter what the motive impelling the rash act, would be more liable to take his own life knowing that his family will be benefited to some extent by life insurance left by him. In rebuttal to this, appellants offered to prove that it required some persuasion on the part of an agent to get the deceased to take the very policy that was delivered on the morning of the death, and undertook to prove that the deceased had one or two other policies that had recently lapsed. The court erred in refusing to permit the proffered testimony, especially as the record is totally lacking in any motive or reason for deceased taking his own life.
Appellants contend that the judgment should be reversed and here rendered in their favor. The argument is advanced that, since the legal presumption is against suicide, a judgment based upon a verdict of suicide cannot stand unless the evidence upon which the verdict is founded is of such character as to exclude every other reasonable hypothesis of death than that of self-destruction. In support of this contention they cite the case of Fort Worth Mutual Benevolent Association v. Jennings (Tex.Civ.App.) 283 S.W. 910. In that case the jury found that the cause of death was not suicide, and this court was asked to reverse the judgment because the verdict was without sufficient supporting evidence. The opinion in the case cited merely holds that, since the evidence was circumstantial, in order to reverse and render the judgment on the insufficiency thereof, the evidence must exclude every other reasonable hypothesis of death than that of suicide. This is but the application of general rule of law, and is not one peculiarly applicable to suicide cases. The legal presumption against suicide merely places the burden of proof upon the party pleading the same, and the rule relating to the evidence necessary to prove suicide is no different from the rule relating to the establishment of any other fact. In order to establish suicide, it is not necessary that the evidence should preclude every other reasonable hypothesis of death than that of suicide. Whether or not a man committed suicide is a fact question, and must be proved by preponderance of the testimony just as any other fact. Since the jury in this case has found that the deceased met his death by suicide, their finding cannot be disturbed by this court unless it was against the great weight and preponderance of the testimony. In our judgment, the testimony in this case amply sustains the verdict of the jury, and we must therefore overrule appellant's contention.
Error is predicated on the following charge, to wit:
"Gentlemen of the jury, you are instructed that, unless you find from the evidence that the death of the deceased, W. R. Jennings, was caused by his own hand or act, voluntarily and intentionally done, there is a legal presumption that the death of the deceased was produced from some accidental cause."
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.
Legal presumptions are for the guidance of the court in the application of the law, and the first case above cited is a very able opinion by that eminent jurist, Judge Stayton, which will serve as a guide to trial courts in reference to charging on presumption.
We have given careful consideration to all of the other errors presented, and believe that the same should be overruled.
For the reasons above indicated, the cause is reversed and remanded for another trial.