MINER, J.:
This action was brought to recover $5,000 on a policy of insurance issued by the defendant to J. Harley Warner. By the terms of the policy the defendant agreed to pay $5,000 to Warner, or his survivor, if death result from external, violent, and accidental means, but does not extend to cover accidental injuries or death resulting from fighting, suicide, felonious or otherwise, sane or insane. The plaintiff, in his complaint, claims that on March 5, 1891, while this policy was in force, the assured was accidentally shot and killed, the ball passing through [438]*438,his body in the region of the heart'. This allegation in the complaint is denied by the defendant, and the further defense is made that the death of the assured was suicidal, or the result of his own carelessness and negligence. The jury rendered a verdict for the plaintiff -for the sum of $5,000 and interest, and at the same time returned into court their special findings, as follows:
“ (1) Was the death of J. Harley Warner caused and produced on or about March o, 1891, by a bullet penetrating the heart of the said J. Harley Warner, deceased? Answer. Yes; that is, the region of the heart. (2) Do you find from the evidence that the death of the said J. Harley Warner was caused or produced by a gun-shot wound? A. Yes. (3) Was the wound found in the •region of the left nipple of the said J. Harley Warner produced by a pistol fired by the said J. Harley Warner? A. Don’t know. (4) Do you find from the evidence that J. Harley Warner was shot on or about March 5, 1891, by an assassin or burglar? A. Don’t know. (5) Do you find from the evidence that J. Harley Warner was of a cheerful and buoyant disposition, and in good health, physically and mentally, just prior to March 5, 1891? A. Yes, as to disposition. Don’t know as to health. (6) Do you find from the evidence that J. Harley Warner had been- afflicted by a disease called cla grippe’ and neuralgia just shortly before his death? A. Yes, slightly; a week or ten days before his, death. (7) Had not J. Harley Warner been taking medicine and narcotics shortly before his death? A. Yes, a few days before his death. Don’t know as to narcotics. (8) Do you find from the evidence that any effort was made by the heirs of J. Harley Warner, or any of them, to conceal or suppress the facts connected with his death? A. No.”
And thereupon, the defendant moved for judgment in his favor on such special findings, claiming “(1) that special findings of fact numbered 3 and 4, which special [439]*439findings are part oí the record, and are made part of this motion, are and each of them is inconsistent with the general verdict; (2) the general verdict is contrary to the special findings in the said cause, and is not supported thereby.” Which said motion of the defendant the court on the 28th day of April, 1891, overruled, and entered judgment on the general verdict in favor of the plaintiff and against the defendant for the sum of $5,323.33, and for the cost of the said suit, to which defendant duly excepted.
The testimony taken on the trial of this case is not embraced in the record here, hence ive do not know whether the allegations of the complaint were sustained by proof or not. The presumption in such case is that every fact necessary to sustain the allegations of the complaint and to justify the verdict of the jury was proved on the trial. Resting upon this presumption, we shall not consider any matter embraced in the exceptions, except the question as to whether the general verdict of the jury is consistent with their special findings and those arising upon the charge of the court. The two principal facts to be established by the plaintiff were external violence and accidental means causing death. As we have seen, the verdict of the jury, in the absence of any testimony in the record, is conclusive upon this question. It cannot be presumed as a matter of law that the accused took his own life, or that he was murdered; the presumption of law is against either murder or suicide. Insurance Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. Rep. 1360; Richards v. Insurance Co., 89 Cal. 173, 26 Pac. Rep. 762; Utter v. Insurance Co., 65 Mich. 545, 32 N. W. Rep. 812. By the general verdict and special findings Nos. 1 and 2 it appears that Warner’s death was caused by a bullet from a gun penetrating the heart. These findings establish the fact that death was caused by external violence within the meaning of the policy.
[440]*440The next inquiry is as to whether the death was accidental or intentional. If the deceased was killed by the accidental discharge of a gun in his own hands, it was accidental, within the meaning of the policy. If he committed suicide, the plaintiff cannot recover in this action, as under the terms of the policy it did not extend to coyer self-destruction, whether the insured was sane or insane. Nor does this policy contain the clause retained in some policies, and referred to in Insurance Co. v. McConkey, supra, that no claim shall be made under it where the death of the insured was caused by intentional injuries inflicted by the insured or any other person. Therefore, if the deceased came to his death by a gun-shot wound inflicted by an assassin or burglar, it must be deemed accidental to the deceased within the meaning of the policy, and under the presumptions spoken of. The jury do find in the third and fourth special findings that they “don’t know” whether the wound found on Warner’s body was produced by a pistol fired by Warner, nor whether the shot was fired by an assassin or burglar. The defendant claims that the findings are inconsistent with the general verdict, but we cannot concur in this view. The jury find that death was produced by a gun-shot wound; the presumption of law is that Warner did not suicide, and was not murdered. No testimony is presented in the record of any kind to rebut these presumptions. The fact must stand admitted that Warner came to his death by external violence and accidental means. With these facts admitted, how does it matter whether a burglar or assassin shot him, or whether he shot himself?
The third question answered by the jury does not embrace the question as to whether Warner fired the shot with suicidal intent or not, so that an answer in the affirmative to the question propounded would not have shown any suicidal purpose on the part of Warner, nor would such answer have been inconsistent with the general verdict.
[441]*441The jury were instructed by the court that if the deceased committed suicide the plaintiff could not recover. They were also instructed that before the plaintiff could recover, the jury must he satisfied by a fair preponderance of evidence that the deceased came to his death by external, violent, and accidental means, and that his death was accidental; and upon the issue thus presented the jury found against the defendant in their general verdict. The most that can be claimed from .the answers to the third and fourth special findings is that the jury could not determine, from the evidence submitted to them, whether Warner came to his death from an accidental discharge of the pistol in his own hands, or whether he was shot by an assassin or burglar.
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MINER, J.:
This action was brought to recover $5,000 on a policy of insurance issued by the defendant to J. Harley Warner. By the terms of the policy the defendant agreed to pay $5,000 to Warner, or his survivor, if death result from external, violent, and accidental means, but does not extend to cover accidental injuries or death resulting from fighting, suicide, felonious or otherwise, sane or insane. The plaintiff, in his complaint, claims that on March 5, 1891, while this policy was in force, the assured was accidentally shot and killed, the ball passing through [438]*438,his body in the region of the heart'. This allegation in the complaint is denied by the defendant, and the further defense is made that the death of the assured was suicidal, or the result of his own carelessness and negligence. The jury rendered a verdict for the plaintiff -for the sum of $5,000 and interest, and at the same time returned into court their special findings, as follows:
“ (1) Was the death of J. Harley Warner caused and produced on or about March o, 1891, by a bullet penetrating the heart of the said J. Harley Warner, deceased? Answer. Yes; that is, the region of the heart. (2) Do you find from the evidence that the death of the said J. Harley Warner was caused or produced by a gun-shot wound? A. Yes. (3) Was the wound found in the •region of the left nipple of the said J. Harley Warner produced by a pistol fired by the said J. Harley Warner? A. Don’t know. (4) Do you find from the evidence that J. Harley Warner was shot on or about March 5, 1891, by an assassin or burglar? A. Don’t know. (5) Do you find from the evidence that J. Harley Warner was of a cheerful and buoyant disposition, and in good health, physically and mentally, just prior to March 5, 1891? A. Yes, as to disposition. Don’t know as to health. (6) Do you find from the evidence that J. Harley Warner had been- afflicted by a disease called cla grippe’ and neuralgia just shortly before his death? A. Yes, slightly; a week or ten days before his, death. (7) Had not J. Harley Warner been taking medicine and narcotics shortly before his death? A. Yes, a few days before his death. Don’t know as to narcotics. (8) Do you find from the evidence that any effort was made by the heirs of J. Harley Warner, or any of them, to conceal or suppress the facts connected with his death? A. No.”
And thereupon, the defendant moved for judgment in his favor on such special findings, claiming “(1) that special findings of fact numbered 3 and 4, which special [439]*439findings are part oí the record, and are made part of this motion, are and each of them is inconsistent with the general verdict; (2) the general verdict is contrary to the special findings in the said cause, and is not supported thereby.” Which said motion of the defendant the court on the 28th day of April, 1891, overruled, and entered judgment on the general verdict in favor of the plaintiff and against the defendant for the sum of $5,323.33, and for the cost of the said suit, to which defendant duly excepted.
The testimony taken on the trial of this case is not embraced in the record here, hence ive do not know whether the allegations of the complaint were sustained by proof or not. The presumption in such case is that every fact necessary to sustain the allegations of the complaint and to justify the verdict of the jury was proved on the trial. Resting upon this presumption, we shall not consider any matter embraced in the exceptions, except the question as to whether the general verdict of the jury is consistent with their special findings and those arising upon the charge of the court. The two principal facts to be established by the plaintiff were external violence and accidental means causing death. As we have seen, the verdict of the jury, in the absence of any testimony in the record, is conclusive upon this question. It cannot be presumed as a matter of law that the accused took his own life, or that he was murdered; the presumption of law is against either murder or suicide. Insurance Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. Rep. 1360; Richards v. Insurance Co., 89 Cal. 173, 26 Pac. Rep. 762; Utter v. Insurance Co., 65 Mich. 545, 32 N. W. Rep. 812. By the general verdict and special findings Nos. 1 and 2 it appears that Warner’s death was caused by a bullet from a gun penetrating the heart. These findings establish the fact that death was caused by external violence within the meaning of the policy.
[440]*440The next inquiry is as to whether the death was accidental or intentional. If the deceased was killed by the accidental discharge of a gun in his own hands, it was accidental, within the meaning of the policy. If he committed suicide, the plaintiff cannot recover in this action, as under the terms of the policy it did not extend to coyer self-destruction, whether the insured was sane or insane. Nor does this policy contain the clause retained in some policies, and referred to in Insurance Co. v. McConkey, supra, that no claim shall be made under it where the death of the insured was caused by intentional injuries inflicted by the insured or any other person. Therefore, if the deceased came to his death by a gun-shot wound inflicted by an assassin or burglar, it must be deemed accidental to the deceased within the meaning of the policy, and under the presumptions spoken of. The jury do find in the third and fourth special findings that they “don’t know” whether the wound found on Warner’s body was produced by a pistol fired by Warner, nor whether the shot was fired by an assassin or burglar. The defendant claims that the findings are inconsistent with the general verdict, but we cannot concur in this view. The jury find that death was produced by a gun-shot wound; the presumption of law is that Warner did not suicide, and was not murdered. No testimony is presented in the record of any kind to rebut these presumptions. The fact must stand admitted that Warner came to his death by external violence and accidental means. With these facts admitted, how does it matter whether a burglar or assassin shot him, or whether he shot himself?
The third question answered by the jury does not embrace the question as to whether Warner fired the shot with suicidal intent or not, so that an answer in the affirmative to the question propounded would not have shown any suicidal purpose on the part of Warner, nor would such answer have been inconsistent with the general verdict.
[441]*441The jury were instructed by the court that if the deceased committed suicide the plaintiff could not recover. They were also instructed that before the plaintiff could recover, the jury must he satisfied by a fair preponderance of evidence that the deceased came to his death by external, violent, and accidental means, and that his death was accidental; and upon the issue thus presented the jury found against the defendant in their general verdict. The most that can be claimed from .the answers to the third and fourth special findings is that the jury could not determine, from the evidence submitted to them, whether Warner came to his death from an accidental discharge of the pistol in his own hands, or whether he was shot by an assassin or burglar. Now, if these findings were fairly open to a double construction, the general rule is held to be that, where special findings are fairly susceptible of two constructions, the one upholding, and the other overruling, the general verdict, that construction will be adopted which upholds the general verdict. Larkin v. Upton, 144 U. S. 19, 12 Sup. Ct. Rep. 614. So in Mallory v. Insurance Co., 47 N. Y. 54, it is held that where, from the facts of the case, it appeared that a violent death was either the result of accidental injury or of suicidal act of deceased, the presumption of law is against the latter, and upon that ground a verdict for the plaintiff was sustained. So, where the evidence leaves it in doubt as to whether the death of an insured was caused by a fall or by a blow struck by a third person; yet in either case the death is caused by “accidental means," within the general terms of a policy providing against injuries or death caused “through external, violent, or accidental means." Richards v. Insurance Co., 89 Cal. 170, 26 Pac. Rep. 762; Utter v. Insurance Co., 65 Mich. 545, 32. N. W. Rep. 812.
Exceptions are taken to the several instructions given by the court to the jury and numbered 1, 6, 7, 8, 9, 12, 15, 16, and 17, respectively, and to the refusal of the [442]*442court to charge as requested by the defendant. We have given these matters careful attention, and find that the court fairly covered all the questions presented by the pleadings in this case, and presented the law of the case fairly to the jury. Upon the whole record as presented we find no error. The judgment of the court below is affirmed, with costs.
Zane, C. J., and BlacKburn, J., concurred.