Hill, J.
Tliis was an action by the administrator of the estate of Bobert A. Coleman, deceased, against the New York Life Insurance Company upon a policy of life-insurance for $2,000, issued by the company on the life of the decedent. The petition •alleged that the policy was issued on November 27, 1917, and that Coleman died on November 11, 1919, less than two years after the issuance of the policy. It was further alleged, that proofs of death had been furnished and that the defendant had failed and refused to pay over to the plaintiff the proceeds of the policy. It was also alleged that the defendant had acted in bad faith in refusing to pay over the proceeds of the policy and was liable to the plaintiff for damages and attorney’s fees. A copy of the policy was attached to the petition. It contained the following stipulation and condition“ Self-destruction. In event of self-destruction during the first two insurance years, whether the insured be sane or insane, the insurance under this policy shall be a sum equal to the premiums thereon which have been paid to and received by the company and no more.” The defendant in its answer admitted the execution and delivery of the policy and the furnishing of proofs of death and the payment of the premiums, and set up as a defense the allegations that on November 11, 1919, within the first two insurance years of the policy, said Bobert A. Coleman destroyed himself by shooting himself in the head with a pistol, and that the insurance under the policy is, as provided therein, the sum equal to the premiums paid thereon and received by the company, and no more. The defendant further alleged that it had tendered to the plaintiff the amount of the premiums received by it on the policjq and that the plaintiff had declined and refused [609]*609to accept the same. The defendant, by an amendment to its original answer, admitted a prima facie right of the plaintiff to recover except as to damages and attorney’s fees, and reiterated its defense of suicide within the first two policy years. The trial resulted in a verdict and judgment for the plaintiff in the sum of $2,000 principal, $96 interest, and $150 attorney’s fees. No damages were awarded. The defendant’s motion for a new trial, as amended, was overruled and the movant excepted. The plaintiff filed a cross-bill of exceptions to the judgment overruling his motion to dismiss the defendant’s special plea, on the ground that the plea disclosed no reason why the defendant should be relieved from the payment of the full amount of the policy, that no legal and valid defense is therein set forth, that the quoted clause in the policy did not warrant the construction placed thereon by the defendant in its pleadings, and that the statement therein that the company’s liability was limited to the premiums paid and received was a mere conclusion of the pleader.
The view that this court entertains of the case on its merits makes it unnecessary to consider and decide the questions raised by certain special assignments of error, the decision on the merits being conclusive of the relative rights of the parties. Before considering the evidence on the merits of the case and illustrative of the defense set up, there are several well-settled principles of law applicable to the facts and in the light of which the case will be determined. These principles are herein set out without discussion, and will be applied to the evidence in the record, by which it will be determined that a verdict, under the terms and conditions of the policy expressly set out, was demanded, and that the verdict for the plaintiff is not supported by any evidence either direct or circumstantial. In other words, the evidence shows that the insured, Bobert A. Coleman, committed suicide within two years of the date of the policy; and, under the terms of the policy which are controlling on the question, the maximum amount legally recoverable is the amount of the premiums paid within the two years when the policy was in force, and no more can be legally recovered under the evidence and the law applicable thereto.
It is undisputed that the insured, Bobert A. Coleman, died on November 11, 1919, during the first two insurance years of the policy, and that his death was caused from a pistol wound in his [610]*610right temple. The manner in which the wound was inflicted is not stated in the petition, but the general allegation is made that the said Robert A. Coleman died intestate in Clay County on November 11, 1919. The plaintiff offered no witness nor any evidence of any kind to show the cause of the death of Robert A. Coleman, or how the wound on him was inflicted, and it follows that the verdict rests solely upon the legal presumption against suicide, and in the present case'the only support for this presumption is mere conjecture which is unsupported by any evidence of any character. In the decision of the Supreme Court in the case of Jenkins v. National Union, 118 Ga. 587 (45 S. E. 499), it was said: “We think it indubitable that when a contract of insurance provides that the policy shall be void in the event the insured shall commit suicide within a certain time, * whether at the time of committing suicide [the insured] shall be either sane or insane,’ the meaning is that, regardless of his sanity or insanity, the voluntary self-destruction of the insured within the time set out shall void the policy.” In Travelers Insurance Co. v. Sheppard, 85 Ga. 751 (12 S. E. 18), the presumption against suicide was stated thus: “Where the fact of death is established, and the evidence points equally or indifferently to accident or suicide as the cause of it, the theory of accident rather than of suicide is to be adopted.” And it is universally held that the defense that the insured committed suicide must be established by a preponderance of the evidence, but that the presumption against suicide easily jdelds to physical facts clearly inconsistent with it. Hodnett v. Ætna Life Ins. Co., 17 Ga. App. 538 (87 S. E. 813). The case last cited is very much like the one at bar in its facts and the inferences therefrom.
Of course, if there is no evidence as to the cause of death, it will be presumed that the death is from natural causes. But the principle may be carried still further, and it may be regarded as a settled rule that, when the circumstances of the death are such that it might have resulted from negligence, accident, or suicide, the presumption is against death by suicide. This rule is stated by Mr. Cooley in his Brief on the Law of Insurance, Yol. IY, p. 3255. But it is well established that the fact of death by accident is not to be established by conjecture or presumption, unless there is no evidence whatever as to the cause of the death. The pre[611]*611sumption of death by accident is prima facie only and is rebuttable, and, as said by several of the decisions, easily rebuttable by physical facts in evidence, and this presumption prevails only when the cause of the death is unknown. It does not prevail where there are facts bearing upon the question whether the death was intentional or accidental. When evidence is produced which is contrary to such a presumption, or the presumption is met by a conflicting presumption, it disappears, although the fact upon which it rests may still remain proper to be considered in arriving at a conclusion.
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Hill, J.
Tliis was an action by the administrator of the estate of Bobert A. Coleman, deceased, against the New York Life Insurance Company upon a policy of life-insurance for $2,000, issued by the company on the life of the decedent. The petition •alleged that the policy was issued on November 27, 1917, and that Coleman died on November 11, 1919, less than two years after the issuance of the policy. It was further alleged, that proofs of death had been furnished and that the defendant had failed and refused to pay over to the plaintiff the proceeds of the policy. It was also alleged that the defendant had acted in bad faith in refusing to pay over the proceeds of the policy and was liable to the plaintiff for damages and attorney’s fees. A copy of the policy was attached to the petition. It contained the following stipulation and condition“ Self-destruction. In event of self-destruction during the first two insurance years, whether the insured be sane or insane, the insurance under this policy shall be a sum equal to the premiums thereon which have been paid to and received by the company and no more.” The defendant in its answer admitted the execution and delivery of the policy and the furnishing of proofs of death and the payment of the premiums, and set up as a defense the allegations that on November 11, 1919, within the first two insurance years of the policy, said Bobert A. Coleman destroyed himself by shooting himself in the head with a pistol, and that the insurance under the policy is, as provided therein, the sum equal to the premiums paid thereon and received by the company, and no more. The defendant further alleged that it had tendered to the plaintiff the amount of the premiums received by it on the policjq and that the plaintiff had declined and refused [609]*609to accept the same. The defendant, by an amendment to its original answer, admitted a prima facie right of the plaintiff to recover except as to damages and attorney’s fees, and reiterated its defense of suicide within the first two policy years. The trial resulted in a verdict and judgment for the plaintiff in the sum of $2,000 principal, $96 interest, and $150 attorney’s fees. No damages were awarded. The defendant’s motion for a new trial, as amended, was overruled and the movant excepted. The plaintiff filed a cross-bill of exceptions to the judgment overruling his motion to dismiss the defendant’s special plea, on the ground that the plea disclosed no reason why the defendant should be relieved from the payment of the full amount of the policy, that no legal and valid defense is therein set forth, that the quoted clause in the policy did not warrant the construction placed thereon by the defendant in its pleadings, and that the statement therein that the company’s liability was limited to the premiums paid and received was a mere conclusion of the pleader.
The view that this court entertains of the case on its merits makes it unnecessary to consider and decide the questions raised by certain special assignments of error, the decision on the merits being conclusive of the relative rights of the parties. Before considering the evidence on the merits of the case and illustrative of the defense set up, there are several well-settled principles of law applicable to the facts and in the light of which the case will be determined. These principles are herein set out without discussion, and will be applied to the evidence in the record, by which it will be determined that a verdict, under the terms and conditions of the policy expressly set out, was demanded, and that the verdict for the plaintiff is not supported by any evidence either direct or circumstantial. In other words, the evidence shows that the insured, Bobert A. Coleman, committed suicide within two years of the date of the policy; and, under the terms of the policy which are controlling on the question, the maximum amount legally recoverable is the amount of the premiums paid within the two years when the policy was in force, and no more can be legally recovered under the evidence and the law applicable thereto.
It is undisputed that the insured, Bobert A. Coleman, died on November 11, 1919, during the first two insurance years of the policy, and that his death was caused from a pistol wound in his [610]*610right temple. The manner in which the wound was inflicted is not stated in the petition, but the general allegation is made that the said Robert A. Coleman died intestate in Clay County on November 11, 1919. The plaintiff offered no witness nor any evidence of any kind to show the cause of the death of Robert A. Coleman, or how the wound on him was inflicted, and it follows that the verdict rests solely upon the legal presumption against suicide, and in the present case'the only support for this presumption is mere conjecture which is unsupported by any evidence of any character. In the decision of the Supreme Court in the case of Jenkins v. National Union, 118 Ga. 587 (45 S. E. 499), it was said: “We think it indubitable that when a contract of insurance provides that the policy shall be void in the event the insured shall commit suicide within a certain time, * whether at the time of committing suicide [the insured] shall be either sane or insane,’ the meaning is that, regardless of his sanity or insanity, the voluntary self-destruction of the insured within the time set out shall void the policy.” In Travelers Insurance Co. v. Sheppard, 85 Ga. 751 (12 S. E. 18), the presumption against suicide was stated thus: “Where the fact of death is established, and the evidence points equally or indifferently to accident or suicide as the cause of it, the theory of accident rather than of suicide is to be adopted.” And it is universally held that the defense that the insured committed suicide must be established by a preponderance of the evidence, but that the presumption against suicide easily jdelds to physical facts clearly inconsistent with it. Hodnett v. Ætna Life Ins. Co., 17 Ga. App. 538 (87 S. E. 813). The case last cited is very much like the one at bar in its facts and the inferences therefrom.
Of course, if there is no evidence as to the cause of death, it will be presumed that the death is from natural causes. But the principle may be carried still further, and it may be regarded as a settled rule that, when the circumstances of the death are such that it might have resulted from negligence, accident, or suicide, the presumption is against death by suicide. This rule is stated by Mr. Cooley in his Brief on the Law of Insurance, Yol. IY, p. 3255. But it is well established that the fact of death by accident is not to be established by conjecture or presumption, unless there is no evidence whatever as to the cause of the death. The pre[611]*611sumption of death by accident is prima facie only and is rebuttable, and, as said by several of the decisions, easily rebuttable by physical facts in evidence, and this presumption prevails only when the cause of the death is unknown. It does not prevail where there are facts bearing upon the question whether the death was intentional or accidental. When evidence is produced which is contrary to such a presumption, or the presumption is met by a conflicting presumption, it disappears, although the fact upon which it rests may still remain proper to be considered in arriving at a conclusion. As was well expressed by the Court of Appeals of Missouri: “Where the facts appear from which the issue of accident or suicide might be determined, then all presumptions, such as the love of living, and against suicide, are out of the case, and a plaintiff will not -be entitled to recover and bolster up the case on such presumption where the facts of the tragedy are introduced in evidence.” Thompson v. Business Men’s Accident Ass’n of America, 231 S. W. 1049.
It has been repeatedly held by various courts, in discussing this question, that the issue as to the cause of death must be proved like any other fact in a civil action, by a preponderance of the evidence on the question. Modern Woodman of America v. Craiger, 175 Ind. 30 (92 N E. 113, 93 N. E. 209). As stated in several eases on the point, the law does not prescribe any formula by which the hypothesis of accident must be removed; it is sufficient that it is met by evidence, where there are no facts or circumstances shown indicating accident or mistake, and facts and circumstances are shown which establish that the cause of death was suicide. “ Men do frequently commit suicide. It is one of the multitude of legitimate inferences, in which we infer the unknown from the known, having greater or less degrees of probability, which we use in reasoning to arrive at the ultimate fact. Being a probability based upon human experience, in its nature, it is controlling only in the absence of evidence of the actual.” Grosvenor v. Fidelity & Casualty Co., 102 Neb. 629 (168 N. W. 596). In other words, in its' essential analysis the question we are discussing should be proved like any other fact. There should be nothing peculiar or exceptional in the method of proof. The tendency to find contrary to the facts in such cases is based upon the tendency of juries to find verdicts in insurance cases frequently against the weight or [612]*612preponderance of the evidence and according to their natural sympathies and inclinations. The American Law Beview of December, 1918 (52 Am. Law Bev. 922), in discussing the case of Grosvenor v. Fidelity & Casualty Co., cited above, expresses the following opinion, which is borne out almost universally in the trial of such cases: “ In practice, however, the juries by whom these cases were heard generally, if not always, ignored the evidence and found for the plaintiff as a matter of principle. The presumption against suicide was invoked when the appeal was heard, and the courts refused to disturb the verdict even though the ordinary man had no doubt as to cause of death.”
In the present case, after giving the evidence most careful consideration, and applying to it the well-settled principles of law which have been stated, this court is clearly of the opinion that “ the ordinary man would have no doubt as to cause of death,” and that the deceased insured took his life by shooting himself through the head with a pistol. This fact is indicated by a very strong motive. It is demonstrated circumstantially by the physical facts in the case. There is nothing to the contrary of this conclusion except the merest conjecture, and this conjecture must yield to facts. It can only exist in the absence of such facts. Indeed, if there is any evidence in the ease that shows the cause of death, that evidence must prevail. As against the mere conjecture, the slightest evidence of physical facts becomes strong, even conclusive. We do not hesitate to affirm, from a careful consideration of the record in the case, that the undisputed evidence proved that the cause of the death in this case was intentional suicide by the insured shooting himself through his right temple with a pistol. The evidence shows a strong motive for self-destruction. The insured was the unfortunate victim of a loathsome disease. This disease was urged upon him by his physician as a reason why he could not undertake the risk of marriage, and the existence of this disease not only prevented his marriage but caused him great mortification and humilation, so much so that he seems to have been unwilling to have a scientific test made as to the fact that the disease still existed and prevented him from consummating marriage. These two motives furnished reasons which apparently existed, and, in the absence of any other cause for suicide, strongly indicated the reason for the suicide. In addition to these [613]*613strong sentimental reasons the physical facts point unerringly to self-destruction.
In the evidence for the plaintiff it is not suggested how the pistol of the insured could have been placed opposite his right temple and be discharged so close as to burn the flesh and produce powder marks around the spot where the bullet entered, except by the intentional act of the insured. If he had dropped the pistol, causing it to discharge accidentally, it is impossible that he would have been shot through the right temple, the bullet going straight in; and it is altogether possible that there would have been no powder burns or burnt flesh. The evidence showed that the insured, just before he was shot, was sitting on the porch of the house, at the top of the steps, with his feet on the steps. There was no one near him just before the shot was fired. When last seen beforé the shot was fired, the pistol of the insured was lying by him on the floor of the porch. A son of the insured testified that immediately after he heard the pistol-shot he looked up and saw his father falling off the porch; that he heard the pistol shoot one time and he immediately called John Crapps; that he then went and looked at his father and saw the pistol under the door-step, about two or three feet from his father, who was lying down on the ground side of the door-step; that his father fell down the steps and rolled on one side; that after he was shot he rolled down the steps; that John Crapps picked up the pistol and opened it, and it was smoking; that as soon as he heard the shot fired he looked right at his father and saw him fall off of the step; that he did not see the pistol drop; that he saw his father fall.immediately after the pistol fired; that his father was sitting down when he saw him fall; and that he did not know which hand his father had the pistol in. This son was so impressed with the correctness of this conclusion that the record contains a statement made by him, as a part of the res gestse, that contemporaneously with the shot and while looking at his father he exclaimed that his father had shot himself. John Crapps testified, that he heard the pistol shot and that he ran and jumped over the fence and went towards where he heard the shot, and stooped down and looked under the house and saw the insured falling on the ground; that he did not see anybody about there, and that he ran up to the insured and that the insured had fallen on the ground with his face towards the [614]*614ground, and that the witness turned the insured over and saw the pistol on the right side of the body of the insured, something like three feet from him, and saw the wound and powder-burns on right side of his head; and that he unbreeched the pistol and found one cartridge had been shot.
We come to the conclusion that not only the preponderance of the evidence, but all of the evidence, both as to motive and physical facts, connected with the death of the insured, and that all reasonable inferences and deductions therefrom clearly overcome any presumption of law 'on the question of suicide or accidental death, and demands a finding that the insured came to his death by his own hand and intentionally; and, in view of the special condition in the contract of insurance that it should be void in the event of the death of the insured by his own hand within two years of the date of its issue, and it appearing affirmatively that the contract of insurance was issued within two years of the date of death of the insured, a verdict was demanded for the defendant, except that the defendant was liable for the amount of the premiums paid and received by the company; and a new trial should have been granted by the trial judge.
We do not think there is any merit in the cross-bill filed by the defendant in error.
Judgment on the main hill of exceptions reversed.
Bloodworth, J., concurs. Jenkins, P. J., dissents. Judgment on the cross-hill affirmed. Jenkins, P. J., and Bloodworth, J., concur. Stephens, J., disqualified.