Woodmen of the World v. Alexander
239 S.W. 343
Tex. App.
1922
Check Treatment
WILLSON, C. J.

(after stating the facts-as above). [1] The district judge having declined to try the case, on the ground that he was a member of the appellant society and therefore disqualified from trying it, the parties agreed to try it before C. E. Bryson,, an attorney practicing at the Oamp county bar. Notwithstanding the agreement, appellant insists Judge Bryson was without power to try the case, and therefore that the judgment against it is invalid. The contention is based on a provision in article 1676, Vernon’s Statutes, as amended by the act of March 12, 1915 (Vernon’s Ann. Oiv. St. Supp. 191⅜. *345 art. 1676) whch seems to have been intended to deny to the parties to a cause a right to agree upon an attorney to try it unless the disqualification of the presiding judge had been certified to the Governor and it was found to be impossible for the presiding judge and a judge designated by the Govern- or to exchange districts so the designated judge could try the case. The contention is overruled. It is expressly provided in section 11 of article 5 of the Constitution that when a judge of the district court is disqualified to hear and determine a case “the parties may, by consent, appoint a proper person to try said case.” The right being so conferred on the parties, the Legislature was without power to restrict it in the manner provided in the statute. Patterson v. State, 87 Tex. Cr. R. 95, 221 S. W. 596; Parker County v. Jackson, 5 Tex. Civ. App. 36, 23 S. W. 924; Oates v. State, 56 Tex. Cr. R. 571, 121 S. W. 370; Cohn v. Saenz (Tex. Civ. App.) 194 S. W. 685.

[2] The contention that the ánswer of the jury to the question submitted to them was too “indefinite and uncertain” to be made the basis of a judgment against appellant also should be overruled, wé think. The .answer, as we construe it, was that-the assured did not die by his own hands or act nor by accident. Appellant having admitted that appellee was entitled to recover against it if the assured did not die by his own hands or act, the finding of the jury that he did not die that way warranted a judgment against appellant, notwithstanding the jury also found that the assured’s death was not due to accident, and did not find what it was due to.

[3, 4] Rut we think the finding of the jury that the insured did not “come to his death as the result of his own hands or act” was contrary to the evidence, and that the trial court should have set same aside and granted appellant a new trial. The testimony so far as it was material to the question is set out in the statement above. It will be noted that all of it, so far as it is as to matters of fact, points to suicide as the cause of the assured’s death, and is not consistent with any other theory. Appellee has not pointed out, and we have not found anything in the testimony, which remotely suggests that the assured’s death was due to accident .or to the intentional act of any other person than himself. It is true a physician testified that he did not think a person in the position the assured was found to be in “could force himself down and choke himself to death.” But the physician’s opinion was not competent as evidence to prove that the insured’s death was not due to suicide. Ins. Co. v. Wagner, 50 Tex. Civ. App. 233, 109 S. W. 1120, 1123, and authorities there cited. As it- was not, his opinion cannot be regarded as testimony entitled to probative force in the case.' Henry v. Phillips, 105 Tex. 459, 151 S. W. 533. Nor can the finding of the jury that the assured did not commit suicide be supported on the presumption the law indulges against suicide. (Woodmen v. McCulloch [Tex. Civ. App.] 192 S. W. 1154), for “presumptions are not indulged against testimony.” Moore v. Supreme Assembly, 42 Tex. Civ. App. 366, 372, 93 S. W. 1077, 1079; Sharpleigh v. Cooper, 1 White & W. Civ. Cas. Ct. App. § 55; Lincoln v. French, 105 U. S. 614, 26 L. Ed. 1189; Modern Woodmen of America v. Kincheloe (Ind. App.) 93 N. E. 452. In the case last cited the court said:

“There is a presumption of law against suicide; * .* * but such presumption is not evidence and cannot be treated as. evidence by the jury in reaching a verdict.”

[5] The effect of the presumption is, it seems, merely to place on the party asserting that death was due to suicide the burden of proving it. If he fails to prove it the presumption is to be given effect, but it has no probative force as against testimony sufficient to prove death by suicide. The testimony admitted at the trial showing, as it did, that the death of the assured was 'due to his own act, and there being no testimony in the record on which to base a conclusion to the contrary, the finding of the jury was unauthorized, and this court cannot do otherwise then reverse the judgment based on it. Grand Fraternity v. Melton, 102 Tex. 399, 117 S. W. 788; Ins. Co. v. Long (Tex. Civ. App.) 178 S. W. 778. Therefore it will be reversed, and the cause will be remanded to the court below for a new trial.

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