*1 It is Court province Supreme not within the case, in the additional to the chancellor give any directions pre- other than been set forth our such as have already mandate, therefore the motion opinions- vious in our for same denied. Buford, J.,C. Ellis, Terrell, Brown,

Whitfield, J., concur. Davis, J. Company York v. New Life Insurance Mutual R. Marion Johnson. 442.

166 Sou. 11, 1935. Filed October Opinion 28, 1936. Rehearing February On March 1936. Rehearing On Further *3 McCollum, Doggett, Howell Petitioner; & Doggett, for Mathews, John E. for Respondent.

Per Curiam. Certiorari granted in case and this oral argument heard before Division B of this Court on of the return writ of certiorari with its accompanying record.

While interesting questions of have been law argued ably at the bar and discussed in the of petitioner, briefs we find a conclusive reason for of quashing writ certiorari rule, in case to be the peculiar cases, to certiorari that a Circuit Court’s a judgment affirming of the judgment Civil Court of Record be quashed may certiorari only when, case a considered with reference pleadings and record of the Civil Court of taken Record means up of the appeal Court, to the Circuit been made to has

570 rendered appear thereby judgment affirmance of Court, the Circuit court of sitting ap- while as primary in the accordance pellate jurisdiction premises, is requirements with the essential law.

In an appellate the Circuit Court considering judgment of Court, certiorari from this Court upon Supreme permitted Judge’s to review correctness the Circuit ruling on the disclosed the evi- appeal . merits as dence in the Civil Court of bill of exceptions, Record’s is, the Court is not Supreme permitted to reconsider certiorari, weigh the effect of such evidence. On before can sufficiency Court look into the of the evi- Supreme dence, there must some the Circuit Court showing be adopted and enforced of the law wrong reviewing view the case on the and that it rule applied wrong of law its own consideration weighing appellate legal the evidence and the case where the suf- is one particular the evidence ficiency judgment to warrant presented from was raised and appealed appropriately for appeal to Circuit Court reversal. ground American Fegenbush, Co. v. Fla. Ry. Express 320; Co., Mountain Mill 103 Fla. Rep. Sou. Ulsch v. City *4 932, Therin, 696, 483; 138 Sou. Brinson v. 99 Fla. Rep. 127 So. 313. been in this showing No such has made case.

Certiorari quashed. J., and J.,C. and Whitfield, Brown, Buford, Davis, J. concur. Rehearing

On Petition for Division B. case came up

Terrell, certiorari a from J. This of the judgment Circuit Court of Duval affirming County a judgment the Civil Court of of Record of that in county In respondent. opinion favor of our former quashing “that this Court into the writ we held look before would of the showing be some sufficiency must that the Court a adopted wrong Circuit and enforced view in of law case on the evidence and that reviewing rule of law its own con- applied wrong appellate sideration and of that the case weighing and is one the legal where of the evidence to sufficiency war- rant the particular appealed from was judgment appro- raised and an presented priately appeal to Circuit Court a for ground reversal.”

A in rehearing granted were which it reargument that the fervently urged Circuit adopted and Court applied an rule law in erroneous of of the .case its review appeal having done so there was failure to comply requirements essential of in law the entry of the judgment. record,

Because of the state of the the direct issue raised Court, one of first being impression in this and the urgence counsel, have we made thorough examination It cause. without its but that does not lie difficulty issue, in the application arises from the of the law the facts adduced fine, In issue. the case is one of those typical border line cases which losing litigant is' rarely convinced that the decision reached is justified, regardless of how it falls.

The issue is clear. Respondent was the in an beneficiary accident policy by petitioner insurance executed favor husband, her ,of R. provided The policy James Johnson. indemnity” “double the beneficiary, upon that the proof external, violent, death of assured was caused and acci- dental means inedpendently exclusively other causes. killed October 1932. The face of the policy Johnson *5 refused on the was indemnity but double paid promptly was that did not come to his death assured ground contended means. accidental to- action was brought by beneficiary A common law decla- provision. under the double The indemnity recover means. death accidental alleged ration relied on and death acci- that assured came Pleas denied to de- that it self produced by means and asserted was dental at trial. presented struction. Such the clear issue drawn, respond- thus the burden With issue ent, action, prove in the to that death resulted from plaintiff presumption accidental means. To invoke the of law in support this issue some must against suicide the hypothesis be introduced consistent with of death accidental means. suicidé- presumption against law .The when the cause of death gives rebuttal and is known way wholly are and when fact circumstances physical by- or death theory hypothesis inconsistent any is- It when the of death prevails accidental cause means. unknown. a complete contends that there absence of

Petitioner means, that the- evidence to any death law presumption rebut the physical facts completely suicide, has no in a case where against which like this place proven reasonable hypoth- circumstances exclude any esis that death It insured came accidental means. possible is further contended under theory the only can presumption against which suicide be invoked this case pistol presume accidentally got Johnson’s position, cocked, accidentally pulled, effect of which trigger would be accidentally would, on presumption which pyramid presumption' *6 rule of law of a second erroneous application amount to the n contrary the settled rule in such cases. to contention it

This to examine the record makes necessary any for purpose the whether was ascertaining n the evi- to verdict The and judgment. it dence all circumstantial and much is not dispute. It is a police shown the officer earning insured was month, children, a per had wife and four small he '$160.00 little and financial owed had no or domestic troubles. very n On the he killed he off because of boil day was was a duty ankle, on his and got pay his wife his check cashed day (cid:127)drove him to foot and early the doctor dressed get to his to the station to a small bill. evening filling pay gas the he During while his wife was down town ordered day and installed a new that night radio and after eating supper usual he the nürsed one played played radio and or with (cid:127)of children 9:00 he his until about o’clock. Later sat wife, his living talked with his “fooled” with and room He ex- pistol, and told his wife bullets. splitting about firearms, perienced in the use of righthanded, time, a all pistol carried on which duty placed he duty. the drawer on the mantel he came from or when home About 11:00 to upstairs o’clock insured and his wife went for go bed. The went room get insured ready his bed when last seen alive few beneficiary bed, minutes he his later feet sitting floor, at which .38 Smith pistol looking Wesson, action, special, required by double size being Police The went Department. beneficiary the Jacksonville to her room for bed prepared and when she had started hall, to turn out the in the but light before reaching fired, once, pistol she the room at and found entered side, feet right on the bed on his lying hanging insured bed, off the his head near the pillow, a bullet entered had his head to the left of center of between his his left eye eyebrows line, and the hair head, had passed through and lodged just under the surface on side. opposite *7 The pistol onwas the bed near the insured who was dead.

As the evidence foregoing there nowas conflict. There was to powder as burns around the wound where the bullet head, entered the there insured's were on the head, pillow near his and on right between the hand the thumb and first finger, but this evidence in hope- was It conflict.- was less testified Dr. by Killinger for petitioner that if were powder there burns of the tattoo type around wound pistol have been would from four to six inches from the at head time of discharge, while if the burns consisted in a or searing of the flesh the burning pistol would have been within one or inches of two or pressed against at the head the time of is discharge. It in said cases of destruction self with a firearm if or searing burning flesh that fact tends to support suicide, while if the flesh burned fact was would point to accidental death.

The evidence powder marks on pillow was also in hopeless conflict. Respondent it only contends that contradicted the verbal by but is testimony disproved clearly physical facts evidence. The deceased lying- on his side right the evidence his head was some- where pressed from against the pillow to two feet from it. From its location the direct says respondent, it would have impossible been to have made marks powder on the pillow unless the deceased been shot in the had top head, if there. is urged

It with force respondent that strongest fact her case is that supporting was a right handed Johnson man while the evidence shot the left shows he side the temple, over to the left the left eye, midway between the and the hair line. It eyebrow contended that all the reported cases that right show country handed men when self destruction committing invariably themselves on the right shoto side while men left handed under same shoot circumstances themselves on the left side. This circumstance accidental support of death that respondent was entitled to considered. have

In its pleas petitioner denied came deceased his death means and averred death self brought about destruction but introduced no evidence whatever to its It pleas. on the relied insufficiency evidence offered to support petitioner’s case. Petitioner further contends that all the evidence being circumstantial cannot because falls prevail short of *8 evidence, test required of such that to it must say, is show that the circumstances supporting accidental death be fully established, that all facts relied on must be consistent with the hypothesis means, of death accidental that the cir- by nature, proven cumstances be of a must conclusive a should to certainty moral exclude hypothesis but every that of death accidental means. this by Failure to apply rule constituted the application of the rule of law wrong charged to court in the case on below review of appeal.

Petitioner in error to the degree as proof required of when circumstantial In determining evidence is relied on. means, whether one committed suicide or died accidental by are not courts bound of the evidence by preponderance rule or the rule fact material requiring proven to be doubt, a beyond of to exclusion reasonable as guided criminal cases. be as They may circumstantial is as direct evidence. The rule most generally approved well that on to establish when circumstantial evidence relied is destruction, the the burden of self one it carries relying it to exclusion of reasonable every hypothesis proving death. it has been accidental some said suicide By evidence, must be a established preponderance inconsistent easily yields facts physical clearly it. that the Others defense suicide must be say proof, proof established clear and be- satisfactory doubt, yond a reasonable nor the or- preponderance sense, a preponderance necessary but such as dinary is presumption overcome the of innocence of moral turpitude or crime. 14 L. 417 cited. R. C. and cases circumstantial,

In a case this where like the evidence clear, conflict, altogether and as to some facts hopeless the verdict jury, if of the as based one men have and is prudent could reached reasonably means, consistent with death it will not be if preponderance overthrown evi- supported by dence resolved even if there some evidence jury consistent with suicide. W. W. v. Sovereign Camp O. 72 Fla. Hodges, So. 347. agree

The courts the presumption against generally suicide will until stand overcome sufficient it. enter outweigh Many considerations into determi- motive, presence nation or absence of physical such as death, surrounding place facts where body found, its position, presence powder or absence *9 firearms, (cid:127)marks when death was and caused habits insured, temperament of the and social environ- domestic circumstances, ment as well as 14 L. 417. R. C. pecuniary The presumption against suicide cannot stand against un- circumstantial, controverted direct or which points

577 destruction, to self of death but when the cause conclusively if the tends establish death unexplained is or means, is consistent or the evidence some of not im- reasonable that death self hypothesis a may prevail. self destruction posed presumption against 705; Anderson, 66 York Life Ins. Co. v. Fed. (2nd) New Weaver, 680. York Life Ins. Co. v. 8 Fed. (2d) New a of the when careful cases discloses study While one relies on death accidental means to recover bur- reliance, have to be den on him to prove his it does is be It proven proof. or other direct eyewitnesses may au- proven deducible from or other facts physical some thorities shows a death not plaintiff hold when violent case made out. York self inflicted is New prima facie Trimble, 849; Life Ins. Co. v. 69 Fed. United States (2nd) Blum, Co. v. 270 Fed. 946. Fidelity Guaranty & It that in also where good authority is held cases or suicide support evidence in of death accidental means doubt, question is so as to leave the balanced nearly will presumption against favor of the suicide theory tip Mutual Life Ins. favor of accidental death. scales 996; 765, Winswell, 44 Pac. 56 Co. of New York v. Kan. 57 W. App.), Brown Sun Life Ins. Co. Chan. S. (Tenn. v. Beck, 252; 415, K. P. Supreme 51 L. R. v. Lodge A. 532, 45 L. U. S. Ct. Ed. 741. Sup. ' see the verdict let examine the evidence how Now us cases. The with the rule of law squares governing no one in the room himself and witnessed deceased was accidental or inflicted Whether was self tragedy. In probabilities. and rests conjecture matter motive whatever suicide no presumption against that de- suggested shown for self destruction His purpose. ever at time intimated such ceased any *10 domestic relations were social happy, good, his was standing and his circumstances were condi- pecuniary satisfactory tion. Pie was to live his making enough and comfortably position was secure. His health was and he was still good bed, His the young position man. on the powder burns hand, pillow, the the might around bullet hole have been construed as suicide the but resolved supporting jury the evidence on this point negative the were they well within the record in so doing.

In addition to was a foregoing right deceased handed and was man shot over the left temple contrary to the general cases. It rule all competent for these facts go to and since jury resolved those on which there was in favor controversy hypothesis death accidental means with which their con- finding was sistent and finds approved under rule as here it should not be disturbed.

Against the support of peti- death accidental means tioner introduced no of Dr. except Killinger, part of in response material to hypothetical which questions based on of powder the evidence burns evidence of other hopeless facts in conflict. The jury having all of disbelieved predi- no cate for Killinger’s Dr. so it testimony vanished. Other- petitioner wise the relies alleged insufficiency respondent’s testimony died acci- show deceased dental means and not but asserts that only that her testi- shows conclusively placed the mony muzzle of Johnson pistol close to his head and pulled trigger, physical inconsistent are otherwise death acci- facts means, dental and that of Dr. testimony Killinger, instantaneous, death been he having if still Johnson’s wife, on the he was last seen bed where sitting grav- *11 would have him ity pulled forward the floor rather than to backward to the bed.

As the position to he was when shot was Johnson not a is shred of evidence to indicate. Conjectures might be ad indulged point. There was infinitum some evidence to prove he tending was cleaning pistol at the time if he was he have been may holding between up his eye and the to light if see clean. to other physical As two juries, facts Judge Record, Civil Court of and the Circuit Judge, have resolved them against the hypothesis of death suicide and for the herein reasons stated decline we now to them in hold error. A thorough consideration of the record not convince does that the presumption us against suicide was rebutted. We do intimate the presumption to rises the dignity of evidence. It no quality has but it controls result when there competent a lack of is evidence to show death suicide. It also controls in of death cases un- explained violence if the defendant relies on suicide and fails to forward go proof it. Del Bowers, v. Vecchio 280, 56 Sup. 296 U. S. 80 L. 163; Ct. Ed. Jefferson Clemmer, Ins. Co. Standard Life v. 79 Fed. 724. (2d) Suicide as a barrage to should not recovery prevail cases like this when adduced is more consistent with death than it means is with suicide though neither is conclusive.

The presumption against suicide prevails when the cause of death is unknown. From the evidence in this case no can one for certain say how came to death. The Johnson could, therefore, judgment be upheld on this but theory when the physical and other facts were resolved against suicide the death hypothesis accident was much very strengthened fact there was little left n The ver- suspicion conjecture. suicide but

death rea- death and one that with accidental consistent dict have reached. men could prudent sonably in this under the facts impressed are further We in law. ultimate The below sound case judgment re- or not relator involved was whether question respondent. contract with If out its quired carry John- to do It required suicide it so. son committed than 'respondent no law less protection entitled *12 in evidence is more consistent this but if determining the death death accidental than with with is means find, the suicide of men even if and reasonable so jury not the relator should beyond cause of death is settled doubt When is required be contract. suicide comply to its there proof relied on as a defense must be of sufficient (cid:127) to overcome the of death means. showing accidental the On certiorari do effect of weigh we not the can rule to applied we it if of law it. To wrong is reach determine been done requires whether has necessarily an examination the record to of determine whether the are to verdict. We unable to any that a rule been in applied law this case say wrong of has so our former the writ of certiorari judgment quashing on rehearing. reaffirmed

Writ of certiorari quashed rehearing. J.,P.

Ellis, Buford, J., and concur. Whitfield, Davis, J., J., C. and concur in Brown J. the opinion and judgment. upon Curiam. The which the had in

Per pleas trial was that Civil Court of Record denied the death of the in- the the accidental sured “resulted from alleged” means “that the the death denied cause of alleged insured’s that but not aver the death of the accidental” did. insured

581. of suicide A plea destruction. self produced de- However, filed here petition withdrawn. certiorari, the petitioner’s alleges fendant for below favor in a directed verdict its for motion the trial court therefor, That substantially; “as grounds contained drawn to be a matter law deduction reasonable only com- that the insured in the case is from all the testimony * * suicide mitted ' are that the evidence petitioner for the contentions The means, to show death wholly fails that the defendant evidence a rule to the courts applied In dis- suicide insured. proving had burden of counsel, opinion refers the contentions cussing References averred. when suicide is proof burden of disregarded. an be issue of suicide may that “the states opinion specifically The on rehearing action, prove respondent, plaintiff burden record means.” death from accidental The resulted otherwise. the court below ruled show does defendant here the. adjudication The in- suicide proving biirden trial court had *13 the. at sured, evidence adduced that on certiorari but for the verdict and judgment sustain trial sufficient to death of the insured finding which plaintiff involve been means, approved having verdict for new a motion trial the trial denying court court affirming judgment circuit appellate rendered Judgment on the verdict. trial court rendered adhered to. J.,C. Ellis, Terrell,

Whitfield, Buford J., concur. Davis, J.