                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE

  RETTA ELROD, ET AL. v. J.C. PENNEY LIFE INSURANCE COMPANY

                      Appeal from the Circuit Court for Jackson County
                       No. 1266-0-238    John D. Wootton, Jr., Judge



                   No. M1999-02195-COA-R3-CV - Decided June 22, 2000


The plaintiff’s son was insured under an accidental death policy issued by the defendant, which
named the plaintiff as beneficiary. After the son shot himself, the plaintiff sought to recover
under the policy, claiming the shooting was accidental. The defendant insurer denied coverage
on the ground that the death was a suicide. The trial court found for the plaintiff and the
defendant commenced this appeal. Because the defendant failed to satisfy its burden of proving
suicide, we affirm.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Affirmed and Remanded

COTTRELL, J., delivered the opinion of the court, in which CANTRELL, P.J., and CAIN , J., joined.

Lane Moore and Daniel Rader, III, Cookeville, Tennessee, for the appellant, J.C. Penney Life
Insurance Company.

Jacky Bellar and Brandon Bellar, Carthage, Tennessee, for the appellee, Retta Elrod.

                                             OPINION

        Marvin T. Elrod, the plaintiff’s son, was insured under an accidental death policy issued
by the defendant, J.C. Penney Life Insurance Company (“the insurer”). The plaintiff, Retta
Elrod, was the beneficiary of the policy. After Mr. Elrod died, Mrs. Elrod sought to recover
under the policy, claiming the death was accidental. The insurer denied coverage on the ground
that the death was a suicide.

        Mr. Elrod died of a gunshot wound to the head on January 5, 1997 at age 50. After the
shooting, Mr. Elrod was found lying on a couch with a pistol in his hand and his thumb in the
trigger guard. Mr. Elrod’s hand, holding the gun, was resting at his waist and the barrel of the
gun was facing toward his shoulder. The bullet entered at the bridge of his nose between his
right eye and nose, causing bruising at the site. The death certificate listed the cause of death as
“undetermined.” The form certificate listed various options, including suicide, leading us to
conclude that the medical examiner was not convinced the death was the result of suicide.
       On May 7, 1997, Mrs. Elrod, seeking to recover under the policy, sent the insurer the
following letter:

       Claims Department:

       I am the Mother of Marvin Thomas. I was sitting in the chair not far from the
       couch that he was sitting on in the same room at least 3 or 4 ft from him. He had
       been working on the gun with a pair of pylers [sic] and also wipeing [sic] the gun
       with a cloth. Next thing I knew I seen Blood running OFF his cheek then I went
       for help.

       The insurer denied her claim, asserting that Mr. Elrod was excluded from coverage
because his death was a suicide rather than accidental. Mrs. Elrod sued the insurer, seeking to
recover $50,000, the full amount of coverage, and a 25% bad faith penalty.

         At the trial, both parties presented two witnesses. Mrs. Elrod, who was 81, deaf, and
responded only to written questions, testified that she was with her son at the time of his death,
but did not see him pull the trigger. She stated that on the day of his death, her son had been in a
good mood. She testified that after they attended church and ate dinner, her son had been
“fooling with a gun.” When asked why the death should be considered an accident, Mrs. Elrod
testified that she “did not know why but he was just cleaning with the gun and doing around.” At
trial, Mrs. Elrod testified that her son had been using gun cleaning materials. When asked if she
saw the “wire pliers,” however, Mrs. Elrod answered in the negative. The insurer asserted that
this testimony was inconsistent with the following statement she made during her deposition:

       I was sitting there reading the paper and I heard the gun go off. And I didn’t
       know he had a gun until I heard it go off. And that’s all I knowed then. I don’t
       know nothing else to tell you. I don’t believe he’d have shot hisself in the face,
       though, like that. It was just accidental. He was fooling with that old gun that
       wasn’t fit to fool with. . . . I was just seeing him when I was reading the paper, . . .
       I thought he was working on something but I didn’t know what. And I read the
       paper while he was working, like I do every night nearly. That’s all he does is
       gather up something and bring it in and work on it. He had that accident with that
       gun.

       Mrs. Elrod’s second witness was a representative from the insurance company, Mr.
Costa, who admitted that Mr. Elrod’s death certificate stated that the manner of death was
“undetermined.”

        The defense then called the investigating deputy, Kenneth Bean, who testified about the
position of the body and his observations of the surrounding area. Mr. Bean testified that hair,
blood, and flesh residue were found on the tip of the barrel and that gun powder was evident
around the wound. The officer related that the wound was below the right eye at the bridge of
the nose. Although Mr. Bean stated that he saw no gun cleaning supplies near the body, he

                                                 -2-
admitted on cross examination that a pair of vise grips had been sitting on the floor near Mr.
Elrod. He also admitted that when he found it, the gun had been jammed by a casing “where it
wouldn’t recoil and let it reload” and the clip was in when he found it. He agreed that to get a
good look down the barrel, one could press it up to his eye. Mr. Bean testified that he told the
insurer that the cause of death was suicide.

        The second defense witness was Dr. Charles Harlan, a forensic pathologist, and the
Assistant County Medical Examiner of Jackson County. To prepare for the case, he reviewed
photos of the scene taken during the initial investigation, the police report, and Mr. Elrod’s
medical history. He did not examine the body and was not consulted by county officials on this
case. He concluded to a reasonable degree of medical certainty that Mr. Elrod committed
suicide. The doctor testified that this conclusion was based solely on the photos, particularly the
star-shaped or “stellate” pattern of the powder at the entry wound, which purportedly showed that
the gun was tightly pressed against the face when it fired. He also testified that the photos
showed that Mr. Elrod used his thumb to pull the trigger. The doctor stated that Mr. Elrod’s
medical history confirmed his conclusion, pointing to a 1974 hospital record which reported that
Mr. Elrod had attempted to hang himself while incarcerated and had attempted to overdose on his
medication a week before that incarceration.

        Through Dr. Harlan, the defense admitted records from a 1993 hospitalization which
stated that Mr. Elrod:

       has grown increasingly paranoid and fearful of others and he is talking about
       dying. He believes he is going to die, and there was at least one statement where
       he talked about wanting a gun to die.

       On cross examination, the doctor admitted that a 1995 hospital record stated that Mr.
Elrod had no history of suicide attempt. Medical records from 1996 stated that Mr. Elrod would
do whatever was necessary to protect himself.

        Based on the evidence from these four witnesses and the exhibits, the trial court found
“that the death of Marvin T. Elrod was accidental within the meaning of the insurance policy”
and ordered that Mrs. Elrod recover $50,000. The court disallowed the bad faith penalty. This
appeal ensued.

        As a preliminary matter, we turn to the applicable standard of review for the sole issue
presented in this appeal: whether the evidence was sufficient to support the trial court’s judgment
for Mrs. Elrod. Because this is an appeal from a decision made by the trial court following a
bench trial, the standard set forth in Tenn. R. App. P. 13(d) governs our review. Thus, we must
examine the record de novo and presume that the findings of fact are correct "unless the
preponderance of the evidence is otherwise." Tenn. R. App. P. 13(d). Furthermore, great weight
must be given to the factual findings made by the trial court that rest on determinations of
credibility. See Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn.1996). The presumption of
correctness requires us to accept the trial court's findings of fact unless the aggregate weight of

                                                -3-
the evidence demonstrates that a finding of fact other than the one found by the trial court is
more probably true. See Estate of Haynes v. Braden, 835 S.W.2d 19, 20 (Tenn. Ct. App. 1992)
(holding that an appellate court is bound to respect a trial court's findings if it cannot determine
that the evidence preponderates otherwise). For the evidence to preponderate against a trial
court's finding of fact, it must support another finding of fact with greater convincing effect. See
The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.
1999).

         The standard of appellate review of factual determinations must, in this case, be applied
in the context of the burdens of proof assigned by law to each party. In other words, our review
of the trial court’s finding that Mr. Elrod’s death was an accident must include an analysis of
whether the evidence preponderates against that finding when the evidence is weighed according
to each party’s burden.

        The law in Tennessee establishes the burdens of proof for each party where, as here, the
determinative issue is whether a death was due to accident or suicide. The beginning point is
Tennessee’s recognized presumption against suicide. This rebuttable presumption was adopted
“out of deference to the well known fact that almost universally people love and will defend their
lives vigorously, even desperately . . . .” Provident Life & Accident Ins. Co. v. Prieto, 169 Tenn.
124, 144, 83 S.W.2d 251, 259 (1937). This presumption affects the burdens of proof born by
the parties in the following manner:

               (1) In a suit on an accident policy where the plaintiff can recover
               only for an accidental death, the affirmative of the issue is on the
               plaintiff from the beginning to the end of the trial, and the burden
               of proof in its general sense is on the plaintiff to show an
               accidental death.

               (2) This burden is met, and a prima facie case made out, when the
               plaintiff has shown a death by external and violent means under
               circumstances not inconsistent with accident.

               (3) Where a death by external and violent means is shown, and
               there is no proof as to how it was caused, or the attendant
               circumstances leave the question doubtful, or the proof concerning
               them is conflicting or not inconsistent with accident, the law
               presumes an accidental death, and the burden of proof, in its
               secondary sense, is cast on the defendant, and requires it to prove
               by a fair preponderance of the evidence that death was caused by
               suicide.

               (4) This presumption is not displaced by proof of circumstances
               which merely tend in a greater or less degree to show suicide, but


                                                -4-
               in such case it is a question for the jury whether they overturn the
               presumption.

               (5) Where there is no proof indicating either accident or suicide in
               case of a death by external violence, or where the proof is equally
               balanced, or is conflicting, this presumption comes to the aid of the
               plaintiff, in making out his or her case.

               (6) Where death by external violence is shown by facts or
               circumstances, inconsistent with accident, the presumption against
               suicide is displaced, and no longer continues to operate in favor of
               the plaintiff.

Maddux v. National Life and Accident Ins. Co., 36 Tenn. 275, 277-78, 254 S.W.2d 433, 434
(Tenn. Ct. App. 1953) (quoting Prieto, 169 Tenn. at 167, 83 S.W.2d at 267).

         In other words, the person seeking to recover under an accidental death policy has the
initial burden of proving their entitlement to recovery under the policy, i.e., by showing that the
insured’s death was not the result of illness or natural causes but was, in fact, the result of an
accident. Here, Mrs. Elrod presented evidence that her son died “by external and violent means
under circumstances not inconsistent with accident.”1 Id. Mrs. Elrod made out a prima facie
case with proof of the location of the wound, the jammed shell, the vise grips near the couch, and
the facts that her son had been “messing with something” and had been in a good mood. The fact
that the shooting occurred in Mrs. Elrod’s presence also appeared inconsistent with suicide. See
id. Implicit in the trial court’s ultimate finding of accidental death is a finding that this proof left
the question of suicide doubtful, or was not inconsistent with accident as the cause of death.
Thus, the law would presume that Mr. Elrod’s death was accidental.


       1
         The policy did not define the term “accidental death.” We apply the definition used in
Maddux, that the death occurred by external and violent means under circumstances not inconsistent
with accident. See Maddux, 36 Tenn. at 277-78, 254 S.W.2d at 434; Harrell v. Minnesota Mut. Life
Ins. Co., 937 S.W.2d 809, 814 (Tenn. 1996) (terms not defined in insurance contracts must be
construed using their “common and ordinary meaning, with ambiguous language construed against
the insurance company and in favor of the insured”). In Harrell, our Supreme Court rejected the rule
that before a death will be considered accidental the means as well as the result must be involuntary,
unexpected, and unusual. It held that:

       if death is the unanticipated and unexpected result of an intentional, voluntary act,
       it is accidental in the ordinary and plain sense of the word and recovery is available
       under an accidental death insurance policy.

Harrell, 937 S.W.2d at 814.


                                                  -5-
        The burden then shifted to the insurer to prove suicide by a preponderance of the
evidence. Through Deputy Bean, the insurer presented photographs and testimony about the
scene of the incident and position of the body. This evidence was not truly inconsistent with
accident and did not dissipate the presumption. While Dr. Harlan unequivocally testified that the
death was due to suicide, his opinion was based solely on photographs of the body and not an
actual examination, unlike that of the medical examiner, who was unable to ascertain the cause of
death. Dr. Harlan presented no new facts or circumstances, and simply offered his interpretation
of the proof. The trier of fact, who was present at trial and thus well situated to weigh the
evidence, chose not to rely on his opinion.

        Having read and considered the entire record, we cannot say that the evidence
preponderates against the trial court’s decision. We cannot say that the reasonable probabilities
from the evidence, in the light of reason and common sense, all point to suicide, and are
inconsistent with any other theory. See Maddux, 36 Tenn. App. at 278, 254 S.W.2d at 434. This
conclusion is consistent with Maddux. See id. In that case, as here, no direct evidence supported
either the theory of accident or that of suicide. Both parties relied upon circumstantial evidence.
The decedent in Maddux was found dead of a gunshot wound to the forehead caused by a
shotgun. He habitually used the gun to shoot birds and was not unhappy in his home or business
life. Based on this evidence, this court reversed the trial court’s decision to direct a verdict for
the insurer. See id.

        The insurer relies on Mutual Benefit Health & Accident Ass’n v. Denton, 22 Tenn. App.
495, 124 S.W.2d 278 (Tenn. Ct. App. 1939) for the proposition that when evidence inconsistent
with an accident is introduced, the presumption against suicide dissipates. Denton, however, is
factually and procedurally distinguishable. In Denton, the decedent was discovered seated in an
armchair in his office with a bullet wound slightly behind his left ear and a pistol in his hand.
This court reversed the trial court’s decision to deny the insurer’s motion for directed verdict
because the location of the wound precluded a finding that the decedent had been cleaning or
otherwise working with the gun. See Denton, 22 Tenn. App. at 505, 124 S.W.2d at 284. Due to
the placement of the wound and the decedent’s recent bankruptcy, the evidence of suicide in
Denton, unlike that in the case before us, was “inconsistent with any reasonable hypothesis of
death by accident.” Id. Thus, the presumption against suicide was “displaced” by evidence
which left “no room for any reasonable hypothesis but suicide.” Id. Here, the evidence was not
so unequivocal. Proof merely tending to show suicide is not sufficient to rebut the presumption
against it. Id., 22 Tenn. App. at 502, 124 S.W.2d at 282.

        Nor was the evidence of suicide here as strong as that in Littleton v. Provident Life &
Accident Ins. Co., 489 S.W.2d 41 (Tenn. Ct. App. 1972), another case on which the insurer
relied. In Littleton, the decedent was discovered by her young daughter reclined sideways on her
bed with her feet touching the floor and a gunshot wound to the chest. The gun had been stored
unloaded and was not jammed. No gun fixing or cleaning implements were found near the
decedent, who died of blood loss during surgery. The gun was in good mechanical and operating
condition and would not fire, either from a normal or cocked position, unless the trigger was
pulled. The location of powder burns on the clothing, the wound, and the spent bullet found in

                                                -6-
the bottom mattress made it clear that the decedent had lain back on the bed, placed the gun to
her breast, and pulled the trigger. This court observed that “[i]t is most improbable that a person
would hold a gun perpendicular to her chest, while she looks down the barrel to see if it is
loaded.” Id. at 44. This court found the evidence of suicide so forceful “as to exclude any
reasonable conclusion except that Mrs. Littleton's death resulted from an intentional self-inflicted
wound” and affirmed the trial court’s decision to direct a verdict for the insurer. Id. Again, the
evidence before us is not sufficiently forceful to exclude any reasonable conclusion except
suicide, particularly given our obligation to give the trial court’s decision on Dr. Harlan’s
credibility great weight.

        Accordingly, the judgment of the trial court is affirmed. This case is remanded for any
further proceedings which may be necessary. Costs are taxed against J.C. Penney Life Insurance
Company, for which execution may issue if necessary.




                                                -7-
