                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                      May 2, 2001 Session

  PATRICIA WILLIAMS v. CANADA LIFE ASSURANCE COMPANY v.
     JAMES NELSON WILLIAMS and DEBORAH JEAN ELG

                   Direct Appeal from the Chancery Court for Dyer County
                        No. 97-C492    J. Steven Stafford, Chancellor



                     No. W2000-03096-COA-R3-CV - Filed July 24, 2001


The plaintiff’s husband died from a single gunshot wound to his chest which occurred while the two
were alone in their home. By whose hand he died was the sole issue at both the trial and on appeal.
If the plaintiff’s husband shot himself, as she claims, she receives the proceeds from an insurance
policy on his life. However, if she shot and killed her husband, as his adult children assert, they
receive the insurance proceeds. Following the trial, the chancery court concluded that the death
occurred as the result of a suicide. The defendants appealed, arguing that the presumption against
suicide compels the conclusion that their father was shot to death by the plaintiff, their stepmother.
Based upon our review, we affirm the judgment of the chancery court that the death occurred as the
result of a suicide.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

ALAN E. GLENN, SP .J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S., and ALAN E. HIGHERS, J., joined.

John W. Palmer and Jason L. Hudson, Dyersburg, Tennessee, for the appellants, James Nelson
Williams and Deborah Jean Elg.

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellee, Patricia Williams.

                                             OPINION

         This appeal resulted from a dispute as to who receives payment from a $50,000 life insurance
policy on the life of the deceased husband of the plaintiff. After the insurer had denied payment on
the basis of a missing death certificate, the plaintiff filed suit in the Dyer County Chancery Court.
The decedent’s two children from a former marriage intervened as additional defendants in that suit,
filing a counter-complaint and cross-complaint, claiming first that the plaintiff was not the legally
named beneficiary of the policy and, further, that their father had not died of a self-inflicted wound
but, rather, was murdered by the plaintiff. The intervening defendants asserted that, even if the
plaintiff were the lawfully named beneficiary of the life insurance policy, they were entitled to all
of the proceeds of the policy because the plaintiff was barred from taking the proceeds of the policy
by Tennessee Code Annotated § 31-1-106, which section codifies the so-called Slayer’s Rule.

        As to the first issue raised by the defendants, the trial court granted the plaintiff’s motion for
partial summary judgment, concluding that the plaintiff was the legally named beneficiary of her
deceased husband’s life insurance policy. Following a two-day bench trial, the trial court concluded
that the deceased had committed suicide, and, thus, that the plaintiff should not be precluded from
inheriting from him or receiving life insurance benefits. The intervening defendants appealed,
presenting, essentially, the single issue of whether the trial court erred in concluding that the
decedent committed suicide. They specifically argue that the trial court: (1) failed to find sufficient
facts to overcome the presumption against suicide, and (2) failed to give proper weight to
circumstantial evidence supporting the claim of homicide. Having reviewed the record and
applicable law, we affirm the judgment of the trial court.

                                                FACTS

        Patricia Williams, (“plaintiff”), testified that she had married Dale Williams in 1990. Mr.
Williams was medically disabled when they married. He had two children, James Nelson Williams
and Deborah Jean Elg, (“defendants”), by a former marriage. He was some seventeen years older
than the plaintiff, and their marriage can best be described as tumultuous. Ms. Williams apparently
had a number of romantic relationships outside their marriage. Although she admitted that she did
not love her husband, she testified that he was her best friend, and she cared about him. Matthew
Wilson, Ms. Williams’s eighteen-year-old son by a former husband, who knew of his mother’s
liaisons, gave a statement to investigators with the Tennessee Bureau of Investigation in which he
claimed that Mr. Williams knew about the other men but believed that his wife would change.

        Over the course of their marriage, Mr. Williams engaged in an unexplained pattern of faking
various aliments, including heart attacks and strokes, as well as his death, in front of his wife. Ms.
Williams testified that these faking episodes had occurred some twenty-five times. On one occasion,
she called an ambulance to take him to the hospital, although doctors later found nothing wrong.
Ms. Williams testified that the faking became “almost like a hobby.” He kept a number of all kinds
of guns in the house, as well as blank cartridges and vials of fake blood that he used for staged,
western-type shootouts.

        At some point in April of 1997, after having moved out of their house in Dyersburg to live
in an apartment with a boyfriend, Ms. Williams moved back into the home she and her husband had
shared. Ms. Williams testified that she moved back because he had asked her to do so. At that time,
Mr. Williams was recovering from double hernia surgery. According to her testimony, Ms. Williams
was caring for her husband by making certain that he took his medicine and by checking for signs
of blood in his urine.




                                                   -2-
        On Thursday, May 1, 1997, and into the early hours of Friday, May 2, the pair were alone in
their house. Ms. Williams testified that they argued for hours. They fought about Mr. Williams’s
daughter. Apparently they also fought about Ms. Williams’s leaving her husband for good.
According to Ms. Williams, her husband “was just throwing things -- just throwing things
everywhere. It didn’t matter what he picked up, lamps, ashtrays, it didn’t matter. He was just
throwing things.” Items were smashed using hammers. Ms. Williams testified that she took a small
tack hammer and beat it on the table, screaming at him to stop. Finally, things settled down, and the
two began cleaning up the broken glass. Mr. Williams said he was going to the bathroom, and she
went into the kitchen area where she poured a Pepsi into a glass and placed the glass on the table.
Mr. Williams came back into the room and sat down in his chair. She testified as to what occurred
next:

               A. Yeah, sat down in his chair, and he looked up at me, like that, and
               I saw a flash, and then boom, and his shirt just barely - - and I
               thought, “Nh-uh, you’re not doing this to me again.”

               Q. Did you see a gun or a pistol?

               A. I saw a flash, like a - - I didn’t see the whole gun. I just saw the
               flash of a gun, and the boom - - okay - - and he’s still sitting there
               looking at me. So, I’m thinking, “There’s no way you could have
               shot yourself, or you wouldn’t be sitting there looking at me.”

               ....

               Q. Did you think that when he shot himself that he was faking it
               again?

               A. Yeah, I really did.

               Q. Well, what did you do?

               A. I remember sitting at the table looking at him, and I remember
               telling him, “Dale, you’re not doing this to me again.” And I don’t
               really know how long I sat there. And in my mind, I said, “No, I can’t
               take this.” So, I got up and walked in the living room. He was still
               sitting at the table. I remember walking into the living room, and I
               stood in there maybe a minute, I don’t know, and I went back, and he
               was still sitting in the chair. I sat down, and I remember I was trying
               to talk to him, you know, and telling him, “Dale, don’t fake me out.
               I can’t stand this.” And then he slumped. He didn’t foom [sic]. He
               slumped out of the chair.



                                                -3-
        Ms. Williams, who has a history of blacking out and of psychiatric treatment, testified that
she could not remember what happened over the next hours but remembered sitting on the couch
with her legs tucked under her chin. She did remember stepping over Mr. Williams and pulling his
hair and slapping his face in an effort to get him to quit faking. Finally, she realized something was
wrong, and she testified that she made three calls, one to her boyfriend in Kentucky, one to her
brother, and one to a male friend who worked for the ambulance service. It is unclear who actually
requested the ambulance. Nevertheless, calls to the ambulance service and to the Dyer County
Sheriff’s Office occurred some eight to ten hours after the shooting.

         Sheriff Jeff Holt testified that he arrived at the scene after the ambulance and entered the
house where he observed the body of Mr. Williams lying face down on the floor. He also observed
a weapon on a chair to the right of the body. Sheriff Holt testified that the body could have been
sitting at the table and fallen out of the chair into the position where he observed it. He noted the
damage to the house in that several small items were broken, and the kitchen was in disarray,
including broken glass in a china cabinet. Sheriff Holt testified that his department requested
assistance in the investigation from the Tennessee Bureau of Investigation (“TBI”), and Agent Brent
Booth with the TBI arrived on the scene at approximately 2:30 p.m. while Sheriff Holt was still
there.

        Agent Booth testified that when he arrived, he found Mr. Williams lying face down on the
floor in a pool of blood. He saw a Smith and Wesson .357 revolver in a chair within arm’s reach of
the deceased.1 Subsequent laboratory tests failed to reveal any identifiable fingerprints on the gun.
Agent Booth also testified that laboratory results showed that two footprints on the back of Mr.
Williams’s shirt came from shoes belonging to Ms. Williams. Agent Booth further testified that
laboratory tests to determine the presence of gunpowder residue on the hands of Mr. Williams were
inconclusive. Similar procedures were negative, when used to test the presence of blood or
gunpowder residue on a washcloth that Ms. Williams was using when emergency personnel arrived.
No vials of fake blood were found in the house. Blank bullets were found at the home, although
none fit the weapon used in the shooting. Two hammers were found. Agent Booth testified that he
observed an entry wound but no exit wound on the body of the deceased. Based on his experience
as a TBI agent, Booth said that the entry wound appeared to be a contact wound. He described a
contact wound as one where “the muzzle of the barrel of a firearm is in contact with an object or
body that a projectile is fired into.”

        Dr. Thomas Deering, a forensic pathologist and assistant professor of pathology at the
University of Tennessee at Memphis, performed the autopsy. Dr. Deering testified that “[a] contact
gunshot wound is when the end of the barrel is actually in contact with the skin.” Whether a wound
is a contact wound is determined by “looking for evidences of soot and stipple. When a gun is fired,
if there’s close contact, all the soot, all the unburned carbonatous material goes directly into the
wound, as well as any unburned pieces of gunpowder.” He testified that his examination of the skin


         1
          The plaintiff stipulated to the fact that this weapon was the one from which the bullet was fired that entered
the chest of Mr. Williams, causing his death.

                                                          -4-
wound showed that “there was soot around the abrasion ring and inside the wound. In and of itself,
that’s an indication to me that it’s a contact, that the soot and all the particles of gunpowder would
go inside the wound.”2 Dr. Deering described the cause of death as “a gunshot wound to the chest
with severe injury to the heart, the aorta, and the left lung, with severe bleeding associated.” When
asked on cross-examination if the injuries were consistent with an entry wound that went slightly
right to left, such as a self-inflicted gunshot wound by a right-handed person, Dr. Deering responded,
“The main direction is from front to back, and I would say very slightly from the individual’s right
to his left,” but did not specifically say that the wound was consistent with a self-inflicted wound.
Dr. Deering testified further that the shot would not necessarily have immediately immobilized Mr.
Williams. “There may be a period of five or six seconds where he has purposeful activity,”
according to Dr. Deering. During this time, it would have been possible for Mr. Williams to place
the gun on a chair near him, although Dr. Deering noted that no trail of blood to the chair where the
gun was found appeared in the photographs of the scene, meaning that it was “not likely” the victim
had done so.

         Dr. James E. Naifeh, Jr., medical examiner for Dyer County, signed the death certificate for
Mr. Williams. In his deposition, included in the record before this court and admitted as proof in
the trial, Dr. Naifeh testified that the first death certificate he signed on May 27, 1997, noted the
cause of death as “pending” because Dr. Naifeh had not received the autopsy report. Once he had
the autopsy report of Dr. Deering, Dr. Naifeh contacted District Attorney General Phil Bivens, and,
based on information from General Bivens, Dr. Naifeh completed a form entitled, “Delayed Report
of Diagnosis—Death.” On this form, signed and dated October 30, 1997, by Dr. Naifeh, the cause
of death was listed as “multiple gunshot wounds” and the manner of death was checked as “murder.”
Dr. Naifeh testified that he indicated that murder was the manner of death based solely on
information he received from General Bivens. Dr. Naifeh was uncertain as to how the error was
made concerning the multiple gunshot wounds. Dr. Naifeh also testified concerning corrections he
made to the Delayed Report of Diagnosis dated October 30, 1997. On this corrected form, the word
“multiple” was typed through with a single line and above it the word “single” was typed. The final
“s” on the word “wounds” was apparently “whited-out,” leaving the cause of death as single gunshot
wound. The box that had been checked to show manner of death as murder was marked through
with a single line of a pen, and the box indicating that the manner of death was “suicide” was
checked. The following exchange between Dr. Naifeh and counsel for the defendants occurred:

                  Q.    Do you recall what information that you obtained from Mr.
                  Bivens that caused you to make those changes?

                  A. Yeah. I remember discussing it with Phil. I don’t remember
                  exactly when it was. And he said they didn’t have any evidence to


         2
          Dr. Deering was not sent the shirt that Mr. Williams was wearing at the time of the shooting. However, the
shirt was sent to the TBI laboratory, according to Agent Booth, and was determined to have a bullet hole in it and
gunpowder residue. Tests revealed that the pa ttern of residues like that on th e shirt could b e produ ced at muz zle to
garment distance greater than co ntact but less than twelve inches.

                                                          -5-
                show that this was now a homicide -- or that he was considering this
                to be a suicide as opposed to a homicide. He didn’t really elaborate.

                       If I remember the autopsy report, it -- sometimes a pathologist
                can make the determination. In this case, you can’t make a
                determination. All they can say is this was a gunshot wound to the
                chest with, I think burns to the chest up close. It could be suicide;
                homicide in some circumstances.

                        And I think, I guess with Phil’s evidence, whatever he had, he
                determined it to be a suicide as opposed to a homicide. And he
                notified me or I called him. I can’t remember if he called me or I
                called him. But we talked about this, and he said he was classifying
                this as a suicide.

                Q. Based on what he told you, you put on the death certificate
                “suicide”?

                A. Correct.

        The trial court determined that “based upon the proof presented and based upon the law this
Court has to deal with, the Court finds that the presumption against suicide has been rebutted and
that the proof reveals, by a preponderance of evidence, that Mr Williams, in fact, committed
suicide.”

                                             ANALYSIS

                                         Standard of Review

         Because this is an appeal from a decision of the trial court following a bench trial, the
standard of review for this court is governed by Tennessee Rule of Appellate Procedure 13(d), which
states, in pertinent part: “Unless otherwise required by statute, review of findings of fact by the trial
court in civil actions shall be de novo upon the record of the trial court, accompanied by a
presumption of the correctness of the finding, unless the preponderance of the evidence is
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.” Elrod v. J.C. Penney Life Ins. Co., No.
M1999-02195-COA-R3-CV, 2000 WL 798651, at *3 (Tenn. Ct. App. June 22, 2000) (citing The
Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999)). In
addition, we note that “[b]ecause the trial judge is in a better position to weigh and evaluate the
credibility of witnesses who testify orally, we give great weight to the trial judge’s findings on issues
involving credibility of witnesses.” Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)
(citing Gillock v. Board of Professional Responsibility, 656 S.W.2d 365, 367 (Tenn. 1983)).



                                                  -6-
                                            DISCUSSION

       At the conclusion of the trial in this matter, the trial court, finding for the plaintiff, ruled as
follows:

                        The Court is required to examine this evidence in light - or
                required to examine all of the evidence in light of the controlling law.
                As I began this summation a few moments ago, I stated that there is
                a presumption against a person committing suicide in the State of
                Tennessee. That is a rebuttal [sic] presumption. The Court must
                consider all of the evidence in determining if that presumption has
                been rebutted, and that presumption continues on throughout the trial
                of the case until the Court makes a decision.

                         There is also a presumption against murder in this State that
                also is contained in the Nichols case I mentioned earlier. However,
                in a civil case, the presumption against suicide is greater than that
                against murder. So, we are to presume that suicide is not the cause of
                death. However, in examining the testimony, the Court makes the
                following findings, and the Court places great weight on this finding;
                that is the testimony of Dr. Derring [sic]. On cross examination, Dr.
                Derring [sic] was asked if the wound suffered by Mr. Williams was
                consistent with a self-inflicted gunshot wound. He testified that it
                was. Dr. Derring [sic] had examined all the facts and the
                circumstances, and the Court places great weight on what Dr. Derring
                [sic] has to say. The only proof that the Court has before it is the
                direct testimony of Ms. Williams as to the cause of Mr. Williams’
                death. The proof submitted by Dr. Derring [sic] clearly reveals that
                Ms. Williams’ explanation of Mr. Williams’ death is not inconsistent
                with the physical proof. There are unanswered questions, and the
                Court has already noted those unanswered questions. However, for
                the Court to find that Ms. Williams intentionally killed Mr. Williams,
                as contemplated by the statute [Tennessee Code Annotated Section
                31-1-106], the Court would have to engage in speculation and
                conjecture. The Court is unable to do that, according to the law of
                evidence and the rule of law in this State.

        Implicit in the trial court’s ruling was the finding that the plaintiff’s testimony was truthful
when she testified that her husband committed suicide. The defendants argue that the trial court
erred in finding that the death resulted from suicide. They assert that the evidence fails to overcome
the presumption that the death did not occur as the result of suicide and that, in fact, it preponderates
in favor of murder as the manner of death. We will now examine these contentions.



                                                   -7-
      In our consideration of this matter, we note, as did the trial court, there are two operative
presumptions, that against suicide and that against homicide.

                                   Presumption Against Suicide

        The presumption against suicide is an evidentiary rule created by Tennessee law when “the
cause of a person’s death in a civil case is an issue.” Neil P. Cohen et al., Tennessee Law of
Evidence § 3.07, at 3–12 (4th ed. 2000) (footnote omitted). The presumption against suicide is based
on what this court has described as a “well known fact that almost universally people love and will
defend their lives vigorously, even desperately, rather than destroy it, . . . .” Metropolitan Life Ins.
Co v. Staples, 5 Tenn. App. 436, 441 (1927) (citations omitted). The usual context for application
of the presumption against suicide is when a plaintiff seeks to establish that the death of the insured
“resulted from a cause liability for which was assumed by the policy.” Provident Life & Accident
Ins. Co. v. Prieto, 83 S.W.2d 251, 258 (Tenn. 1935). Juries and courts are “properly reluctant after
the policyholder has been silenced by death to conclude that he came to his end by his own voluntary
act.” Bryan v. Aetna Life Ins. Co., 160 S.W.2d 423, 427 (Tenn. Ct. App. 1941). The presumption
is rebuttable. “If the facts and circumstances attending death leave it reasonably doubtful as to
whether it was caused by accidental means or by suicide, the presumption against suicide comes to
the aid of the plaintiff, and casts on the defendant the duty of going forward with the proof and
establishing the defense of suicide by a fair preponderance of the evidence.” Prieto, 83 S.W.2d at
258.

        The circumstances of this case vary from those where the presumption against suicide is
typically operative. More commonly, the presumption against suicide is utilized when an insurance
beneficiary and the insurance company cannot agree as to the cause of death, which affects whether
the company must pay the proceeds of the policy. Here, however, secondary beneficiaries of the
policy seek to utilize the presumption against suicide to compel the conclusion that the death resulted
from an act of murder.

                                  Presumption Against Homicide

         Also operative in this matter is the presumption against homicide. In 1891, our supreme
court concluded that the following was a correct statement of the law: “‘The presumption of the law
is that Bennett did not commit suicide, and was not murdered.’” Accident Ins. Co. of North America
v. Bennett, 16 S.W. 723, 724 (Tenn. 1891). In the same year, another decision of our supreme court
cited Bennett, repeating the proposition that “[i]n civil cases, when one has been found dead, even
with marks of violence, nothing else appearing, the presumption is that deceased did not commit
suicide, as also that he or she was not murdered.” Persons v. State, 16 S.W. 726, 727 (Tenn. 1891).
Both Bennett and Persons are relied on by our supreme court in Nichols v. Mutual Life Ins. Co. of
New York, 156 S.W.2d 436 (Tenn. 1941). The Nichols court added: “It would seem, therefore, that
in a civil case the presumption against suicide is greater than that against murder, and the trial court
committed error in charging the jury that these two presumptions cancel each other.” Id. at 439. The
manner for applying these conflicting presumptions was explained by our supreme court in Milstead


                                                  -8-
v. Kaylor, 212 S.W.2d 610 (Tenn. 1948): “We have here two conflicting presumptions, one of
which is said to offset the other so as to make the cause of death conjectural. This is an erroneous
legal conclusion. It is a well established rule that these presumptions ‘should be measured and that
the weaker should be deemed to be overcome by the stronger.’ Recognizing this distinction, it is the
duty of the Court to consider the probative force of the respective presumptions.” Id. at 613
(citations omitted).

          In determining the issue of the manner of death of Mr. Williams, the trial court placed great
weight on the testimony of Dr. Deering, the dependence upon which the defendants challenge
because initially the court erroneously attributed to Dr. Deering the conclusion that the wound was
consistent with a self-inflicted gunshot wound. The trial court acknowledged its incorrect statement
by order dated July 18, 2000, but stated that, even without such proof from Dr. Deering, its
determination that the death of Mr. Williams was a suicide should remain in full force.3 The trial
court noted that Dr. Deering also testified that the gunshot wound was a contact wound, that is one
where the gun is held up against the body and fired. Dr. Deering further testified that it was possible
that Mr. Williams’s body stayed in the chair before slumping to the floor and that there would have
been some seconds following the gunshot when Mr. Williams could possibly have placed the gun
where it was found in a chair. Dr. Deering did not view the scene with the body, but from
photographs, testified that he thought such purposeful movement unlikely. Agent Booth testified
that the gun was found within “arm’s length” of the body. There was indication of other bruising
to Mr. Williams’s body, but Dr. Deering testified that these bruises could have occurred as the body
fell to the floor. There was no explanation concerning what appeared to be facial scratches. The trial
court heard the testimony of the only witness to the events, Ms. Williams, and found her testimony
consistent with the physical evidence. Her testimony concerning Mr. Williams’s penchant for play
acting and faking harm to himself was uncontroverted. Previously, Mr. Williams had put a gun to
his head and fallen on the floor with his eyes closed and then held his breath. Ms. Williams
explained the lapse of some eight hours from the time of the shooting until she called for assistance
as being, partially, the result of her determination that this was just another episode of play acting.
She also testified concerning previous episodes of her blacking out, once at the time of her father’s
funeral and again at the death of her infant son, implying that she may have simply blacked out on
the occasion of the shooting. Mr. Williams had recently undergone surgery for a double hernia and
also had heart problems. Ms. Williams noted in her statement to the TBI that Mr. Williams had been
depressed about living and had become enraged on two occasions before the events leading up to the
shooting. There was some evidence that Ms. Williams intended to divorce Mr. Williams and that
he may have been angry over this possibility. On cross-examination, she said that on at least one
occasion, while angry, she had threatened to kill her husband.

       Although the presumption against suicide is based on the belief that self-destruction is
contrary to human nature, that is not to say that the court must “shut[ ] its eyes to the fact that men,


         3
           A cause of the confusion may have been that, although the trial court allowed, over objection of defense
counsel, the plaintiff’s counsel to ask whether the wound was consistent with a self-inflicted wound, plaintiff’s counsel
apparen tly decided n ot to pursue that line of questio ning.

                                                          -9-
without any apparent reason, do commit suicide.” Bryan, 160 S.W.2d at 427. Most significant is
the fact that this was a contact wound and that the course of the bullet was from front to back and
slightly to the left. Accordingly, we conclude, as did the trial court, that the evidence here was
sufficient to meet the plaintiff’s burden of rebutting the presumption against suicide by a
preponderance of the evidence.

        Additionally, the defendants assert that the evidence preponderates in favor of murder by Ms.
Williams, that is to say, that they have rebutted the presumption against murder by a preponderance
of the evidence. In support of their assertion, the defendants point to certain aspects of the forensic
evidence as being probative of murder, specifically, that the angle of the gunshot was only slightly
right to left; that the entry of the gunshot was described by Dr. Deering as being “front to back”, an
angle contrary to a self-inflicted wound; that there were unexplained scratches on Mr. Williams’s
face. The defendants also assert that the position in which the gun was found indicates that Mr.
Williams did not put it there. The defendants further support their theory of murder by pointing to
evidence that the relationship between Mr. and Mrs. Williams was volatile; that Ms. Williams had
a “short fuse”; that the two were alone in the house when Mr. Williams was shot; that no fake blood
or blank bullets fitting the gun used in the shooting were found in the house; that Ms. Williams had
asked Mr. Williams about his will; that Ms. Williams did not love Mr. Williams; and that Ms.
Williams remarried, divorced, and changed her name back to “Williams” after the death of Mr.
Williams. The defendants note that Ms. Williams was using a washcloth when the ambulance
arrived; that there were no identifiable fingerprints on the gun; and argue that someone had obviously
been cleaning up the debris from the smashing and breaking of items before the police arrived,
possibly to destroy evidence. In view of these facts, the defendants argue, the trial court should have
concluded that the decedent was killed by the plaintiff.

        In Hollingsworth v. Queen Carpet, Inc., 827 S.W.2d 306, 309 (Tenn. Ct. App. 1991), this
court explained the effect of circumstantial evidence upon the burden of persuasion:

                       In a civil case depending on circumstantial evidence it is
               sufficient for the party having the burden of proof to make out the
               more probable hypothesis and the evidence need not arise to that
               degree of certainty which will exclude every other reasonable
               conclusion. Bryan v. Aetna Life Ins. Co., 174 Tenn. 602, 130 S.W.2d
               85 (1939). In a civil case, where the plaintiff's case depends upon the
               circumstantial evidence, it is necessary for the plaintiff to present
               proof which, if believed by the trier of fact, makes the plaintiff's
               theory of the case more probable than the theory of the defendant.
               Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560 (Tenn. App. 1985).

        During the trial in this matter, the plaintiff testified that her husband committed suicide. She
was subject to cross-examination on all of the circumstantial evidence which the defendants argue
compel the conclusion that the decedent was murdered by her. However, after hearing the witnesses
testify and applying the relevant presumptions, the trial court determined that it would have to


                                                 -10-
engage in “speculation and conjecture” to conclude other than that the decedent died by his own
hand. Applying the appropriate standard of review, we cannot conclude that the trial court erred in
this conclusion. As the trial court noted, in circumstances such as those here, there are questions that
simply will never be definitively answered. Nevertheless, we conclude, as did the trial court, that
the evidence preponderates in favor of suicide.

                                          CONCLUSION

        Based upon the authorities and the reasoning set out herein, we affirm the judgment of the
trial court in favor of the plaintiff. Costs of this appeal are taxed equally against the defendants,
James Nelson Williams and Deborah Jean Elg.




                                                        ___________________________________
                                                        ALAN E. GLENN, SPECIAL JUDGE




                                                 -11-
