The opinion
Walker, J.,
dissenting: It may be conceded that where nothing else appears but the fact that the death of the insured was caused by his own act, the law will presume it to have been accidental rather thap, suicidal, for it will not generally presume a wrong; and it may also be conceded that under the terms of the contract the death must have been caused by the voluntary and intentional act of the insured in order to avoid the policy. But with these concessions made, it seems to me that there is sufficient evidence here of deliberate self-destruction to carry the case to the jury. The provision against liability in the event of suicide is not only a valid one, but a policy which insures against such a risk as suicide has been held to be void as being against public policy. Ritter v. Ins. Co., 169 U. S., 139 . Such a clause -of exemption from liability should therefore be favorably considered, as it is in harmony with the policy of the law.
No one can read the testimony of the beneficiary without being impressed with the belief that in her answer to the question as to the cause of death she intended to convey the meaning that the insured died of a gunshot wound in his left side which was inflicted by himself. If there was any *40 doubt as to what she did mean, it was for the jury and not for the Court to resolve that doubt. The legal effect of this testimony was to bring the case within the operation of the principle laid down in Spruill v. Ins. Co., 120 N. C., 141 , for when she admitted substantially that he died of a self-inflicted gunshot wound, it was equivalent to saying that he died by his own hand, which in that case was said to be sufficient to establish a case of suicide. It is true, she added that “everything pointed to accident in handling the gun, which was supposed to have been empty,” but is the defendant to be concluded by such a statement? In the first place, it is evident that she is merely expressing an opinion, and not stating positively a fact within her knowledge. It is merely her inference from supposed attending circumstances which she deemed sufficient to justify her conclusion. But is it evidence ? Is it not condemned by the elementary rules governing the admission of testimony ? The law deals with facts and not opinions or conclusions of witnesses, except in certain cases, of which this certainly is not one.
Again, we turn to the coroner’s testimony, and find that to the question, “Was death the result of the deceased’s own hand or not?” he gives this answer: “Yes; or by some unknown hand — accidentally or otherwise.” Here again we have precisely the answer that was given in the Spruill case; and there is added, as was done by the beneficiary when replying to a similar question, what is nothing more nor less than rank conjecture. He first says, “Yes,” that is, “he did die by his own hand or act,” and then proceeds to express his opinion in regard to something he evidently knew nothing about. The very terms of his further answer to the question, after he had said positively that he had died by his own hand or act, shows clearly that he did not intend to speak of his own knowledge, but was only making a guess as to what other circumstances may have caused his death.
*41 Tbe insured died in April, and the proofs were not filed with the company until the following August. Why this delay ? But if this fact be not at all significant, why was not an investigation made in the meantime to ascertain if he had been shot by any one else ? There is no suggestion that any one has even been suspected of having shot him. That he killed himself is the only fair and reasonable inference to be drawn from this evidence. It may be added that those who are supposed to know all the facts and circumstances in regard to the manner of the killing have vouchsafed no definite explanation of it, but have considered their duty performed by giving us a mere surmise, which we are just as capable of making as they. We are not told what was the position of the gun with reference to the body when it was found; what the habits of the deceased, nor are any of the attendant circumstances given, although some of them must have been known.
I do not think it was incumbent on the defendant to show that which was peculiarly within the knowledge of the other 'side, or of which they at least had the better opportunity of acquiring knowledge; and especially is this true when the coroner had admitted, and the plaintiff virtually so, that the insured died by his own hand, thereby casting upon the plaintiff the burden of explaining the occurrence.
It is also to be noted that the coroner testified that he held no inquest, and made no post-mortem examination, because no foul play was alleged. What did he mean by this statement ? Simply that he died by his own hand and not by the hand of any one else; that a suicide and not a felonious homicide had been committed. These were all matters for the jury.
It is further to be said that the policy provides expressly that “the proofs shall be evidence of the facts therein stated in behalf of, but not against, the company.’* That which makes for the company shall be considered, but not that which may tend to make for the beneficiary. The sufficiency of the evi- *42 deuce for the purpose of being submitted to the jury and considered by them is to be determined in the light of this stipulation, which is reasonable and valid, and should therefore be enforced. Ins. Co. v. Dick, 44 L. R. A., 846, and notes. And surely this must be so when all the evidence was introduced by the plaintiff. If these matters are considered, it sufficiently appears, prima facie at least, that the insured died by his own hand (Bigelow v. Ins. Co., 93 U. S., 284 ), and the other statements in the proofs are merely some evidence, if evidence at all, to qualify or contradict this admission; but at last it is for the jury to weigh and decide upon. Ins. Co. v. Higginbotham, 95 U. S., 380 ; Ins. Co. v. Dick, supra; Johns v. Relief Association, 90 Wis., 332 ; May on Insurance, sec. 325. If the opinion or conjecture of the plaintiff stated in the proofs was competent at all, it certainly should be considered by the jury, and not held as matter of law to absolutely overcome and destroy the other statement.. They would not, perhaps, attach as much weight to a mere expression of opinion as they would to the positive statement of a fact within her knowledge. It was evidence, therefore, for the jury, and. not such as warranted the Court in rejecting altogether the other part of the answers and virtually directing a verdict.
It is to be noted that the plaintiff did not go on the stand, nor did she offer the other witnesses who joined her in the proofs. This is significant and was a proper subject of comment in discussing the evidence before the jury, and was a circumstance proper for their consideration. Goodman v. Sapp, 102 N. C., 477 ; Yarborough v. Hughes, 139 N. C., 199 .
The right of trial by jury is one that should be jealously guarded and accorded to the citizen in all cases, where there are any disputed matters of fact which raise issues between the parties. It is one of the fundamental guaranties of our system of government, and should never be denied to any *43 litigant in whose favor a reasonable inference of fact may be drawn from the evidence. Spruill v. Ins. Co.,. supra. Unless it is perfectly clear and manifest that there is no such evidence, to take from him the privilege of having the evidence weighed by the only tribunal appointed for that purpose, and the best ever devised by the wit of man, is a plain invasion of his constitutional right. With all possible deference for my brethren, from whom I always regret to differ, I must think that there is evidence in this case which entitles the defendant to be heard by a jury and to have their judgment upon the facts. The majority, it seems to me, have attached too much importance to incompetent, irrelevant and inconclusive statements in the proofs, and have failed to shift the burden of proof from the defendant to the plaintiff upon the admissions in the “proofs of death” (Insurance Co. v. Newton, 22 Wallace, 32), .or to give proper heed to the provision of the policy as to the effect those “proofs” shall have as between the parties to an action on the contract of insurance. When his Honor instructed the jury as he did, in my opinion he committed an error.