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Crespo v. John Hancock Mutual Life Ins. Co.





APPEAL from the Circuit Court of Cook County; the Hon. JOHN A. OUSKA, Judge, presiding.


Plaintiff, Mary Crespo, brought this action against defendant, John Hancock Mutual Life Insurance Company, to recover an accidental death benefit under an insurance policy issued by defendant to plaintiff's husband, the deceased. The jury returned a verdict in favor of defendant, and judgment was entered thereon.

Subsequent to the denial of plaintiff's post-trial motion, this appeal was perfected whereby plaintiff raises three principal issues: (1) whether authorization exists in Illinois permitting the designation of a witness as a "court's witness" in civil litigation; (2) if such practice is permissible, whether the trial court in the instant case erred in calling George Cobbs as a court's witness; and (3) whether prejudicial error was committed when the trial court admitted certain impeaching evidence introduced by defendant to contradict the testimony of Cobbs. In addition to these issues, plaintiff contends that prejudicial error was committed and the jury misled when the trial court excluded certain evidence sought to be introduced by plaintiff; that rulings of the trial court unduly restricted plaintiff in calling and examining certain witnesses in an attempt to counteract the impact of impeaching evidence introduced by defendant; that certain rulings of the trial court on tendered instructions were erroneous; and that plaintiff's motion for a directed verdict, and plaintiff's subsequent motion for judgment notwithstanding the verdict, should have been granted.

This controversy raises a factual issue which our research indicates is novel to Illinois decisional law: whether the beneficiary of a life insurance policy may collect the accidental death benefit thereunder when the insured met his death while purportedly engaged in a game of "Russian roulette."

The pertinent facts follow. On November 12, 1968, plaintiff's husband secured a life insurance policy from defendant. One provision of that policy, which is the focal point of this appeal, provided for a $10,000 accidental death benefit, payable to the beneficiary of the policy, in the event that the insured's "Death resulted solely from an accidental bodily injury, * * *." The policy further provided, in pertinent part, as follows:


The phrase `accidental death' means death resulting directly and solely from

a. An accidental injury visible on the surface of the body or disclosed by an autopsy, * * *.


No benefit will be payable under this provision if the Insured's death results, directly or indirectly, or wholly or partially, from * * *

(2) Intentionally self-inflicted injury while sane, or self-inflicted injury while insane; * * *."

By her complaint, plaintiff, as beneficiary under the policy, alleged that on February 19, 1972, while the policy was in full force and effect, her husband, the insured, accidentally and fatally shot himself. It was further alleged that plaintiff had complied with all conditions precedent enumerated in the policy to warrant plaintiff's receipt of the accidental death benefit, but that defendant vexatiously refused to pay said benefit to her.

The sole defense asserted in defendant's answer to the complaint was a denial that the insured's "death resulted from an accidental bodily injury." In this regard, specific reference was made to the exclusionary language set out above.

Four witnesses testified during plaintiff's case-in-chief. Plaintiff described the deceased as a happily married person who enjoyed a good financial standing and had no apparent reason to intentionally take his life. The deceased obtained the death weapon, a .38-caliber B&S revolver, in December of 1971 for the purpose of increasing security at the grocery store he operated. He owned no other weapons for either sport or hobby, nor did plaintiff recall the deceased ever being trained in the use of guns.

Kenneth Belmar, who was 15 years old and employed by the deceased on the date of the fatal incident, was the second witness to testify. During the afternoon on which the shooting occurred, the witness was laughing and joking in the deceased's store with the deceased and George Cobbs. The deceased pulled a gun from his pants and said, "Let's play Russian roulette." Thereupon, the deceased opened the cylinder of the gun, shook the gun until some bullets fell into his hand, closed and spun the cylinder, and then placed the barrel of the gun next to his head. The deceased pulled the trigger twice, and each time the witness heard a clicking sound. When the deceased squeezed the trigger a third time, the gun discharged, inflicting a fatal head wound.

On cross-examination, Belmar stated that he had never seen the death weapon prior to the fatal incident. After the deceased asked if either the witness or Cobbs would like to play Russian roulette, Belmar told the deceased to put the gun away. The deceased responded with laughter. Belmar did not see the deceased put a bullet into the gun after emptying it, and it was his recollection that the deceased put the bullets that had fallen from the gun into his pocket. When the deceased placed the gun to his head, the witness again asked the deceased to put the gun away, but the deceased laughed and pulled the trigger.

Belmar remembered giving a statement to a police officer on the date of the incident. However, he did not recall relating to any officer that he had seen the deceased put a bullet into the gun and suggest that they play Russian roulette.

After the death weapon was admitted into evidence, during the testimony of a representative of the coroner's office, plaintiff called as her final witness a person who qualified as an expert on guns. In response to a hypothetical question depicting a person attempting to unload a gun in a manner similar to that used by the deceased on the date of the fatal incident, the witness stated that it would be possible for a bullet to stick and remain in the gun under those circumstances. The witness explained that whether or not a bullet sticks in a gun is more dependent upon the size and brand of ammunition than on the type of gun being unloaded. It is possible for ammunition manufactured for use in a particular type of gun to get stuck in that type of gun. The witness demonstrated the proper technique for unloading a .38-caliber revolver, which involves depressing an extractor to assure that all bullets are removed. On cross-examination, the witness described the death weapon as appearing in good working condition.

Plaintiff then rested her case. Prior to calling its first witness, defendant made an oral motion requesting that the court call George Cobbs as a court's witness and allow defendant an opportunity to cross-examine Cobbs. In support of this motion, the court was advised that Cobbs was an eyewitness to the fatal incident and had given prior statements under oath in connection with this incident. At the coroner's inquest, Cobbs testified that he observed the deceased put a bullet in the gun prior to pulling the trigger. Contrary to this statement, at a deposition Cobbs stated that he did not see the deceased put one bullet back into the gun. In addition to these sworn statements, it was asserted that an investigating officer interviewed both Cobbs and Belmar in the store shortly after the occurrence and, at that time, both gave statements indicating that one bullet was either left in the gun or put back into the gun by the deceased prior to his pulling the trigger.

At this point of the oral motion, the trial court interrupted counsel and ruled that a sufficient showing had been made to justify the court in calling Cobbs as a court's witness. A lengthy colloquy ensued between the court and counsel for both parties pertaining to the names of witnesses who might be called by defendant for impeachment purposes following Cobbs' testimony. Upon the completion of this discussion, defendant called William Juzkiw as its first witness.

Juzkiw was employed by the deceased and was present in the store on the date of the fatal incident, but he did not witness the shooting. The deceased purchased bullets, which appeared to be new, at or about the same time he purchased the gun. On one occasion, the witness observed the deceased shoot the gun at the floor, but he had never seen the deceased otherwise play with the gun or point it at anyone.

Belmar was then called as a witness by defendant, and he reiterated his previous testimony describing the manner in which the deceased unloaded the gun on the date of the incident. He did not recall seeing the deceased depress the extractor as the deceased shook bullets from the gun. Belmar also did not recall relating to a police officer at the scene that he had observed the deceased put a bullet back in the gun prior to pulling the trigger.

Over plaintiff's objection, George Cobbs was then called as a court's witness. *fn1 Under examination by defendant, Cobbs gave the following account of the occurrence. On the date of the incident, the deceased appeared to be happy and not under the influence of any stimulants. While talking with the witness and Belmar, the deceased pulled a gun from his pants, pointed it at Cobbs, and asked Cobbs if he would like to play Russian roulette. The deceased laughed when Cobbs rejected the offer. From a distance of 3-4 feet, Cobbs observed the deceased pour bullets from the gun into his hand and place them either in his pocket or on the table next to him. Cobbs did not recall seeing the deceased utilize the extractor when removing the bullets. After closing the cylinder, the deceased pointed the gun at his head and then again at Cobbs. Cobbs declined the deceased's second request to play Russian roulette and cautioned the deceased that he should put the gun away to avoid injury. The deceased laughed, placed the barrel to his head, and pulled the trigger. Cobbs heard about three clicks before the gun discharged, striking the deceased in the head. Prior to this incident, the witness had observed the deceased shoot the same gun on several occasions at different objects such as posters on the wall or bugs crawling on the floor.

The examination of Cobbs by defendant continued with a line of questioning pertaining to pretrial statements made by the witness. Cobbs recalled talking briefly to a police officer at the scene of the incident, he following testimony was elicited:

"Q. Do you recall stating to this police officer shortly after Mr. Crespo shot himself, that you had seen Mr. Crespo empty the gun and put a bullet back in the gun and spin ...

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