APPEAL from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding.
MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from a jury verdict whereby the plaintiff, as beneficiary of a life insurance policy, was awarded $15,000.
The defendant has raised various related contentions which may be condensed to the following points: 1) The verdict was against the manifest weight of the evidence; 2) The court erred for failure to direct a verdict at the close of the case-in-chief and at the close of all of the evidence; 3) The court erred in refusing two of the defendant's instructions; and 4) Plaintiff's failure to reply to defendant's affirmative defense of suicide constituted an admission on her part which barred her recovery under the policy of insurance.
The law is well settled that a reviewing court will overrule a trial court when it finds that the verdict is against the manifest weight of the evidence. This rule does not mean that, had the reviewing court been the trier of fact, it would have come to the same conclusion as the jury. Rather, the rule dictates that the court will not substitute its judgment or findings of fact for those of the jury which had the opportunity to observe the witnesses and to hear all of the testimony, unless the evidence in behalf of the appellant is so strong and convincing as to overcome the evidence and presumptions, if any, existing in favor of the opposite party.
In the case at bar, the jury was instructed by the defendant that, "Where a man suffers injuries which might have been caused by accident, or might have been intentionally inflicted upon himself, and there is no preponderance of evidence as to the cause of such injuries, the presumption is, that they occurred by accident." We believe that a review of the evidence, when viewed in the light of this presumption, shows that the jury verdict was not against the manifest weight of the evidence.
The following facts constituted the plaintiff's case-in-chief. Billie G. Maddox, husband of plaintiff, died on October 16, 1968. An insurance policy on his life, issued by the defendant, consisted of a $5,000 ordinary life provision, a $5,000 ten-year term insurance provision, and a $5,000 accidental death provision. The policy stated that there would be no recovery for "suicide while sane or insane within 2 years of the policy date." The insured died within 2 years of the policy date. After presenting these facts, the defendant moved for a directed verdict, which motion was denied.
Thereupon, the defendant called Ralph S. Coombs, a deputy coroner and a licensed embalmer, whose testimony neither proved or disproved suicide. According to Coombs, the decedent had a shotgun wound in his chest, the size of a "silver dollar;" the wound was surrounded by a dark area; his blood contained alcohol. Such testimony could establish either an accidental discharge of the gun from a close range or an intentional act by the decedent, causing the wound.
• 1, 2 The coroner's certified copy of the certificate of death was then produced; it stated that the immediate cause of death was a gunshot wound in the chest; that the wound was self-inflicted; and, that death was caused by suicide. Upon objection to the admittance of the certificate, the court admitted it for the limited purpose of showing that death was the result of a gunshot wound in the chest. The trial court was correct in its ruling on this point. In a recent opinion, the Supreme Court held that a statement of the cause of death in such a certificate is not a fact entitled to the status of prima facie evidence under the Vital Statistics Act (Ill. Rev. Stat. 1969, ch. 111 1/2, par. 73-25; People v. Fiddler (1970), 45 Ill.2d 181, 185.
Kenneth Flanigan, a detective, testified that he and his partner, in response to a call, went to decedent's home and, upon arrival, found that Deputy Huston had arrived first and was administering first aid to the decedent who was found in the living room. One Leroy Mattux, who was in the kitchen, had been a drinking partner of the decedent during the night preceding his death. Flanigan was asked, "What if anything did you see in the room near him (Billie)?" He replied, "There was a 12 gauge Iver Johnson single shot shotgun." Later he stated, "I understand that Deputy Huston had to move the gun to administer first-aid." Flanigan learned that the decedent drank frequently and that he had thrown his wife out of the house on the fourth of October, 1968. Flanigan could not state that the decedent shot himself or that Mattux shot him, but stated that, "The gun was brought to the Sheriff's office, and apparently printed, and no visible prints on the gun. So there were no other prints taken from anybody."
The location of the gun under or near the body does not disprove either theory. Had the weapon fallen, it could well have discharged close to the decedent and landed near him. The lack of fingerprints lends weight to the claim that the decedent did not shoot himself.
Vicky Marie Pixler, a thirteen year old girl who was a neighbor of the decedent and a playmate of his children, testified, in response to defendant's questioning, that she received a telephone call from him on the morning of October 16, 1968. She stated that she was familiar with the way he slurred words when he had been drinking; that during the phone conversation his speech was not affected; that he told her that his boss had asked him to come back to work and that he said, "if he wasn't in the next day he would be dead"; that he also said to be good to his kids and that "the world was all upside down." Vicky's testimony lends weight to the suicide claim.
• 3 Officer Flanigan's partner and Officer Huston did not testify. Neither did Leroy Mattux. There was no further evidence in regard to the position of the gun in relation to the decedent's body at the time Officer Huston came into the room. There is no evidence stating who owned the gun, how it came to be in the room, or whether the gun was stored in such a manner as to permit it to fall or be accidentally pushed over. In short, there is nothing in the facts which would require a finding of accidental death or a finding of suicide. We therefore hold that, in view of the defendant's instruction to them (as quoted above), the jury's finding of accidental death was not against the manifest weight of the evidence.
Defendant's next contention is that there should be a new trial because the trial court refused ...