Reynolds v. Casualty Co. position to be shot almost squarely through the head from the rear. I am impressed that in order to evade the plain circumstantial evidence of suicide, this process of conjecturing necessitates piling upon the initial presumption, or inference of fact, against suicide, these four presumptions (of none of which is there evidence): (a) that assured was sitting down playing with the pistol when it was first or initially discharged; (b) that he became so excited and confused from its explosion, and from the wound inflicted in his face that he dropped the pistol into the wash-basin; (c) that being loaded and cocked it accidentally discharged from the shock of falling into the wash-basin, and (d) while it was falling, and being dominated by continuing excitement, assured turned his head half way around in time and in such position as to receive the accidental shot in the back of his head. In short, having laid hold of the presumption against suicide, which the law indulges in cases of unexplained violent death, it is necessary then to add or pile on to this initial presumption of fact, four other presumptions, in the very face of the settled rule that one presumption may not be bottomed upon another. [Lawson, Presumptive Evidence, 652; 10 R. C. L. 870.] For not only is there no evidence, or circumstance, to show that the assured was sitting and idly playing with the pistol, when it was first fired, but the physical facts, to my mind, conclusively negative this view. This view leaves out of consideration the fact that is was necessary designedly to cock the pistol before it would fire the first shot. Both the pistol itself and the testimony show this fact conclusively. No one so far has presumed that assured was preparing to engage in target practice in that bath-room on this fatal morning, yet for some reason he intentionally cocked this pistol with his thumb, or by pulling back the outer casing thereof, before the first shot was fired. I need not enlarge upon the apparent impossibility of assured's being able to turn half way around, while the pistol was falling from his Reynolds v. Casualty Co. hand into the wash-basin, a distance certainly of not more than a foot. Unless we are now to hold that this presumption against suicide which is to be indulged in any case of unexplained death by violence is always of such evidentiary substance as to be in itself sufficient to take the case to the jury, it is in my opinion impossible to sustain this verdict. For the sustaining of it upon any other view, necessitates the drawing of four presumptions from and in order to sustain the initial one, which is forbidden. Likewise this view will logically result in sending any and every case to the jury when there is on the one side, plain and unmistakable evidence of suicide, and upon the other nothing but the bare presumption against suicide. And this presumption, instead of being drawn as an inference of fact from the unexplained violent death of a sane person, is arbitrarily evolved not from the lack of evidence, but in the very face of all of the evidence. Apposite to the origin, office and nature of presumptions it was said in the case of Glick v. Railroad, 57 Mo. App. 1. c. 104, this: "The law is that a valid presumption must be based upon a fact, and not upon inference or upon another presumption. If the presumed fact has no immediate connection with, or relation to, the established fact from which it is inferred, it is regarded as too remote. [1 Rice on Evidence, p. 53, sec. 34; Lawson on Presumptive Evidence, p. 569, rule 118.] Or, as was said by Chief Justice REDFIELD: 'Presumptions must always rest upon acknowledged or well established facts, and not upon presumptions.' [Richmond v. Aiken, 25 Vt. 324; McAleer v. McMurray, 58 Pa. St. 126; U. S. v. Ross, 92 U. S. 283.]" Likewise apposite is the language of Judge NORTONI, of the St. Louis Court of Appeals, in the case of Sowders v. Railroads, 127 Mo. App. 1. c. 124, wherein it was said: "All presumptions of fact proceed from other facts in proof (Lawson on Presumptive Evidence, 652), and supply an omitted fact in accord with the dictates Reynolds v. Casualty Co. of human experience on like questions. They are therefore rebuttable or disputable as a matter of course. Inasmuch as such presumptions merely amount to an assumption of what may be true, as indicated by the probabilities and the rationale of experience, they may be entirely overcome or removed from the case by competent proof going to supply the fact presumed. [Lawson on Presumptive Evidence, 559; 22 Am. & Eng. Ency. Law (2 Ed.), 1235-1236; Moreau v. Branham, 27 Mo. 351; Ham v. Barret, 28 Mo. 388.] And it is the well-established law that a presumption of fact will not be permitted to contradict or overcome facts actually proved. [Lawson on Presumptive Evidence, 659; Whitaker v. Morrison, 44 Am. Dec. 627; Morton v. Heidorn, 135 Mo. 608-617.]" I think that both the authorities and the reason of the thing limit the inference (or presumption) of fact against suicide, to cases wherein the deceased was sane and the manner of his violent death is wholly unexplained either by direct or circumstantial evidence. In other words, such an inference is ephemeral, existing only so long as there is no evidence either in contradiction or corroboration of it. When such evidence is present, or when such evidence comes into the case, the presumption, or inference, goes out of it, leaving the matter thereafter to be resolved by the triers of fact, or by the court, solely upon the evidence, without the aid of any extrinsic presumption whatever. The obvious necessity of some method of determining whether an unexplained death is accidental or suicide, makes the indulging of a presumption against suicide a procedural requisite, without which in many cases no conclusion would be possible. When evidence comes in to explain the death, every necessity for the entertainment of the presumption instantly vanishes, and so we have held repeatedly. The obvious unfairness of any other rule is plain; likewise, the far-reaching evil effect of any other rule is plain. For, as already stated, the obvious logical effect of retaining the presumption after proof upon the fact comes in, would be to make Reynolds v. Casualty Co. a case for the jury of every case wherein a presumption, or inference of fact, is required to be indulged. This is so because if such a presumption is real, substantial, and tangible, as to constitute evidence to be weighed in the case along with the real evidentiary facts, then no court could take any case from the jury wherein a presumption is required by law to be indulged. It is I think unfair because, after extracting the inference from the facts, we add it again to these same facts from which we first drew it and so beat down the contradicting evidentiary facts. [State v. Swearengin, 269 Mo. 177.] Briefly summing up these rules, I think it should be held: (a) that the presumption against suicide is allowed only as a matter of procedural necessity; (b) that such a presumption has of itself, and in the presence of explanatory evidence of the facts, no evidentiary weight or substance whatever (Glick v. Railroad, supra; State v. Kennedy, 154 Mo. 268; State v. Hudspeth, 159 Mo. 1. c. 209; Thayer, Treatise on Ev. at Com. Law, 314; 4 Wigmore on Ev., 2511; Peters v. Lohr, 24 S. D. 605; New London Comrs. v. Robbins, 82 Conn. 623; Clifford v. Taylor, 204 Mass. 358; State v. Reilly, 85 Kan. 175; Com. v. Sinclair, 195 Mass. 100; Culpepper v. State, 4 Okla. Crim. 103; State v. Lee, 69 Conn. 186; State v. Linhoff, 121 Iowa, 632; Lisbon v. Lyman, 49 N. H. 553); and (c) that it vanishes when prima-facie evidence of the true facts comes into the case. I think these conclusions are obvious, if not well-settled by the below cases and authorities. [Thayer, Treatise on Evidence at Com. Law, 314; Lawson, Presumptive Ev., 659; Glick v. Railroad, supra; Sowders v. Railroads, supra; Nixon v. Railroad, 141 Mo. 1. c. 439; Reno v. Railroad, 180 Mo. 1. c. 483; Bragg v. Railroad, 192 Mo. 331; Mockowik v. Railroad, 196 Mo. 1. c. 571; State v. Swearengin, 269 Mo. 177; Lamport. v. Ins. Co., 272 Mo. 19.] In fact, it is fairly obvious that if such a presumption has of itself any evidentiary weight or sub 274 Mo.-8. Reynolds v. Casualty Co. stance after proof of the true facts comes in, it could not vanish upon that contingency. Mr. Thayer, in his scholarly work cited above, says: "Presumptions are aids to reasoning and argumentation, which assume the truth of certain matters for the purpose of some given inquiry. They may be grounded on general experience, or probability of any kind; or merely on policy and convenience. On whatever basis they rest, they operate in advance of argument or evidence, or irrespective of it, by taking something for granted; by assuming its existence. When the term is legitimately applied it designates a rule or a proposition which still leaves open to further inquiry the matter thus assumed. The exact scope and operation of these prima-facie assumptions are to cast upon the party against whom they operate, the duty of going forward, in argument or evidence, on the particular point to which they relate. They are thus closely related to the subject of judicial notice; for they furnish the basis of many of those spontaneous recognitions of particular facts or conditions which make up that dectrine. Presumptions are not in themselves either argument or evidence, although for the time being they accomplish the result of both. It would be as true, and no more so, to say that an instance of judicial notice is evidence, as to say that a presumption is evidence." I dissent therefore because I am of the opinion that the evidence in this case shows as a matter of law that the death of assured could not have been accidental. [Richey v. Woodmen of the World, 163 Mo. App. 1. c. 247.] Because, the opinion held by the majority piles presumptions upon presumptions, absent any evidence or basis therefor, save and except that afforded by unbridled recourse to bare hypothesis. And because in the final analysis the effect of the majority opinion is to make of the presumption entertained a matter of evidence, which would result in shearing the courts of the power to declare that there is a lack of evidence in any |