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Kettlewell v. Prudential Ins. Co.





APPEAL from the First Division of the Appellate Court for the First District; — heard in that court on appeal from the Superior Court of Cook County; the Hon. ALAN E. ASHCRAFT, JR., Judge, presiding.


Rehearing denied December 20, 1954.

This cause reaches this court as a result of the allowance of plaintiff's petition for leave to appeal from a judgment entered in the Appellate Court, First District. (1 Ill. App.2d 300, 117 N.E.2d 568.) There, the plaintiff suffered a reversal of a judgment which she had secured in the superior court of Cook County in the sum of $8118.75.

The defendant-appellee, The Prudential Insurance Company of America, whom we shall hereafter refer to as defendant, wrote a policy of insurance on the life of Norman L. Kettlewell, Jr. The plaintiff-appellant herein was designated the beneficiary. Henceforth we shall refer to her as the plaintiff.

On the morning of November 5, 1948, at 8:30, the insured, Dr. Kettlewell, was killed by a northbound Northwestern passenger train at the Oakwood Street crossing in the village of Wilmette. The judgment for plaintiff entered herein was predicated upon a life insurance policy which had been issued six months prior to the death of the insured. That contract of insurance provided that if the insured, whether sane or insane, should within two years of the policy date die by suicide, the company would be liable only for the return of the premiums paid. The defendant asserts by way of affirmative defense that Dr. Kettlewell's death was the result of suicide and that consequently plaintiff is not entitled to recover. The jury in the trial court found for the plaintiff, thus rejecting that contention. The Appellate Court reversed this finding, entering judgment for defendant notwithstanding the verdict. The only question before this court is whether the evidence conclusively leads all reasonable minds to an inescapable decision that Dr. Kettlewell took his own life with suicidal intent. There is very little dispute as to the legal principles applicable, and there is practically no conflict in the evidence.

The burden of proving the affirmative defense of suicide is upon the defendant who must prove it by clear and convincing evidence. (Cooley's Briefs on Insurance, 2d ed., 1928, vol. 6, p. 5475.) Judgment notwithstanding the verdict should not be rendered unless the uncontradicted evidence and circumstances preclude any other reasonable conclusion than that death was by suicide. (Connecticut Life Ins. Co. v. Lathrop, 111 U.S. 612; Wilkinson v. Aetna Ins. Co. 240 Ill. 205.) The law presumes against death by suicide where circumstances are such that death might have resulted from negligence, accident or suicide. (Sweeney v. Northwestern Mutual Life Ins. Co. 251 Ill. App. 1, 24; Knights Templars and Masons Life Indemnity Co. v. Crayton, 209 Ill. 550, 562; Fidelity and Casualty Co. v. Weise, 182 Ill. 496.) The presumption against death by suicide has probative force and is to be weighed by the jury as evidence in determining the issue of suicide in cases where the circumstances are consistent with either suicide or accidental or negligent death. 103 A.L.R. 185.

It has been uniformly held that the legal presumption against suicide vanishes when contradictory evidence is produced, and thereafter, the question is to be decided on the evidence without resort to the presumption. (Guardian Mutual Life Ins. Co. v. Hogan, 80 Ill. 35; Osborne v. Osborne, 325 Ill. 229.) While the burden of proving suicide is on the defendant, proof of motive is not essential. The legal presumption against suicide does not prevent the entry of judgment notwithstanding the verdict when evidence of suicide is clear.

Having in mind the foregoing, let us consider the factual picture. Dr. Kettlewell was a 29-year-old practicing dentist in Wilmette. He left surviving him his widow, the plaintiff, and three children, ages 4, 2 and 1. A fourth child had been born dead about a month previously. The plaintiff testified that she and the doctor had been married for more than seven years and that very little discord interrupted their happy married life; that on the morning of November 5 he left home about 8:00 A.M.; that he was a little tired because they had been up with the children considerably who were suffering from colds; that he promised to go to the drugstore and procure some cough syrup; that he reminded her that they had a dinner engagement that evening and inquired whether arrangements had been made for a baby sitter; that he had an appointment at his office for 9:00 A.M.; and that he had no unusual indebtedness and provided well for his family.

Oakwood Avenue runs east and west, and Linden Avenue which is about 720 feet north also runs east and west. The right of way of the Milwaukee division of the Northwestern railroad, with one track for north bound traffic and one for south bound traffic, runs through Wilmette in a northerly and southerly direction. Green Bay Road is a four-lane north and south highway, running along the west side of the railroad tracks. Trains going north travel on the west track and trains going south travel on the east track. Equidistant between Oakwood Avenue and Linden Avenue is a tower house where a signalman is situated who operates the gates and signals mechanically at both Oakwood and Linden Avenue. There is an upstairs room in the tower with windows to the south, north and east, and as the towerman stands in the room he can see without obstruction anything in each direction.

The defendant relies principally upon the testimony of two eyewitnesses, William H. Heegeman, the towerman for the railroad, and Andrew Schaft, a truck driver. Their testimony, if believed by the jury, is highly suggestive of suicide. Heegeman testified that he was 68 years of age and had been in the employ of the railroad at this particular crossing since 1933; that he put the gates up and down when the trains passed by; that Oakwood Avenue where it crosses the railroad right of way has a two-way drive; and that there are gates at the crossing on each side of the tracks, and one arm of the gates extends over to the center of Oakwood Avenue and the other over the walk where pedestrians travel. This walk is immediately to the north of and parallels Oakwood Avenue.

Heegeman also testified to the following: On the morning of the occurrence, train No. 364, southbound, approached the crossing, at which time the gates were down and the electric bell was ringing; and following train No. 364, on the same track, was a south-bound troop train which stopped about 60 feet north of the Oakwood Avenue crossing awaiting a signal to proceed south, and the electric bell was still ringing. After the troop train received the signal to proceed and had cleared the crossing, the gates at Oakwood were raised to allow one east bound and one west bound automobile to pass over the tracks at Oakwood. While the automobiles were passing the annunciator bell rang signifying the approach of a northbound passenger train, but the operator of the gates was unable to put the gates down as quickly as was his custom, otherwise he would trap the two automobiles on the crossing. In that connection this was Heegeman's testimony: "I dasn't put them down again because the automobiles are crossing. I just can't drop them." Heegeman then turned on the tower bell which was loud and pronounced, and then when the automobiles had cleared, he lowered the gates. When he first lowered the gates he didn't see anyone, and his attention was then directed to Linden Aveune. After putting the gates down there he looked back at Oakwood Avenue where he saw a man, the insured, standing on the crosswalk just outside the gates immediately west of the gate and on the side toward Green Bay Road. He again looked back toward Linden Avenue crossing and then again at the Oakwood crossing when he saw this man standing just inside of the gate at the crosswalk. At the time of the occurrence in question both the electric bell and the tower bell were ringing, and Dr. Kettlewell was standing looking to the south and there was nothing along the crossing or railroad right of way to obscure his vision. When the northbound train was 60 or 70 feet south of Oakwood Avenue the man took three steps, turned his back to the northbound train, stood between the two rails of the northbound tracks and pulled his coat up over the back of his head standing motionless on the track, the train being 10 or 15 feet away from Dr. Kettelewell when he turned his back toward it. The train struck him and threw him 50 to 60 feet north and west of the track. The train was coming 30 to 35 miles an hour. "That's about the speed of that train. It doesn't go much faster, it can't."

Andrew Schaft, the other eyewitness, testified that at the time of the occurrence he was driving his truck south on Green Bay Road near the Oakwood Avenue crossing; that he happened to see the man standing between the rails of the northbound track opposite Green Bay Road and that his back was to the south; that he saw the train hit him and throw him 50 or 60 feet to the north and west of the track; that the gates were down; and that the visibility was good and the streets were dry.

Joseph Radke testified that at the time of the occurrence he was employed at the gas station at the northwest corner of Oakwood Avenue and Green Bay Road. His attention was attracted to the intense loud ringing of the tower bell by the gateman, and he looked up to see why the gateman was ringing the tower bell so vehemently and at the time saw a body roll over to the west.

Frank Vantill testified that he was the engineer on the train that struck Dr. Kettlewell, and he did not know that he had struck him until he arrived at Kenosha, Wisconsin; that the train was traveling between 50 and 55 miles per hour as it went through Wilmette; that he has a recorder on the engine which indicates the speed; that he was traveling slowly because this was a restricted speed area. Kenneth McLean, the fireman, was also called by the plaintiff, and he testified that he did not see Dr. Kettlewell and did not know ...

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