Appeal from the Appellate Court of the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Walter P. Dahl, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
State Farm Life Insurance Company filed an interpleader action in the circuit court of Cook County to determine who was entitled to the proceeds of two policies of insurance on the life of Jesse Lee Smith, who died as the result of two bullet wounds inflicted by Rosa Mae Smith, his wife (hereafter defendant). A complaint was filed charging her with murder, the grand jury voted a no true bill and there has been no criminal prosecution for the alleged offense. In a bench trial the circuit court held that defendant, although named as primary beneficiary, was not entitled to the proceeds of the policies because she had intentionally and unjustifiably killed the deceased. Defendant appealed, the appellate court affirmed (29 Ill. App.3d 942), and we allowed her petition for leave to appeal.
At the time of his death, Smith was employed as an agent for the interpleader plaintiff, State Farm Life Insurance Company. One policy, which provided insurance in the amount of $87,422.50, named defendant as the primary beneficiary and as contingent beneficiary Yvette Smith, the daughter of the defendant and the deceased, and Everlean Smith, the mother of the deceased. The second policy, which provided life insurance in the amount of $5,000 under a group plan for trainee agents of State Farm, named defendant as the primary and the estate of the deceased as the contingent beneficiary. Pullman Bank and Trust has been appointed administrator of the deceased's estate. In compliance with the order of the circuit court, the sum of $92,422.50 has been deposited with the clerk of that court.
The circuit court found that defendant "took the life of Jesse Lee Smith by gunshot and that the taking of the insured's life by Rosa Mae Smith was wilful, intentional and unjustified and that at that point in time at which she fired the shots she was not acting in fear of death or great bodily harm." The court ordered that after the payment of guardian ad litem fees and costs the balance of the $87,422.50 received under the first policy be paid to the contingent beneficiaries and that after the payment of guardian ad litem fees and costs the remainder of the $5,000 be paid to Yvette and Ronald Smith, minor children of the defendant and the deceased.
Defendant contends that the public policy of Illinois as declared in sections 15a and 49a of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, pars. 15a and 49a), which provide that one convicted of murder may not inherit from his victim (par. 15a) and that a devise or legacy by the victim to the murderer is void (par. 49a) "requires a criminal conviction before a named beneficiary who has killed the insured can be precluded from recovering the proceeds of an insurance policy on his life." The contingent beneficiaries (hereafter appellees) argue that "The statutes which disinherit heirs or devisees convicted of the murder of their ancestor or testator support an interpretation which would disqualify Rosa [defendant] from any benefits under the insurance policy."
The Probate Act superseded the common law concerning descent and distribution (Wall v. Pfanschmidt, 265 Ill. 180) but does not govern the rights of beneficiaries to the proceeds of life insurance policies. (See ch. 3, par. 601.) There is no statute which disqualifies the beneficiary who has killed the insured from receiving the proceeds of the policy. In the earlier opinions of this court in which the question was considered, the beneficiary was convicted of murder (Supreme Lodge Knights and Ladies of Honor v. Menkhausen, 209 Ill. 277) or it was presumed that the homicide was murder (Illinois Bankers Life Association v. Collins, 341 Ill. 548). Here, absent a criminal conviction, the question simply put is whether, assuming defendant's action was intentional and unjustified, she is precluded from recovering the proceeds of the policy. It would appear that the long-established policy that one may not profit by his intentionally committed wrongful act should apply, and that a criminal conviction is not the sine qua non which would serve to preclude defendant's recovery.
Defendant contends next that "The court's finding that the taking of the life of the insured by the appellant was wilful, intentional and unjustified is against the manifest weight of the evidence." This contention requires that we determine whether the circuit and appellate courts> applied the correct rule concerning the burden of proof and whether, upon application of the correct rule, the finding of the circuit court is against the manifest weight of the evidence. In their briefs appellees state: "The Trial Court held that the burden of going forward with the proof was that of Everlean Smith and of Yvette Smith, [appellees] * * *, and that Rosa Mae Smith [defendant] had the burden of proof with regard to self-defense and that Everlean Smith and Yvette Smith [appellees] had the burden of proof offsetting evidence produced by Rosa Mae Smith [defendant] as to self-defense." If the decision of the circuit court rests upon findings made upon allocating the burden of proof in the manner stated by appellees, the circuit court erred. The applicable rule, correctly stated by the appellate court, is that the burden was on the appellees to prove that the defendant's actions were intentional and that the killing of the deceased was unjustified. Upon reviewing the evidence in light of the correct rule, we hold that the finding of the circuit court is contrary to the manifest weight of the evidence.
Defendant testified that prior to the date of the occurrence she and her husband, the deceased, had been separated for approximately six months. During that period she had been living with her parents, but had occasionally stayed with the deceased. On that morning she had left her parents' home, in her automobile, at approximately 7:30 a.m. to go to her place of employment. As she approached the parking lot the deceased drove his automobile from a side street in front of her automobile. She stopped, he left his car, walked over to her car, took the keys from the ignition, parked his car, returned to her car, and entered it on the driver's side. He then drove the automobile to a point approximately a half block away from her place of employment. Defendant was approximately five feet two inches tall and weighed approximately 132 pounds. The deceased was six feet tall and weighed approximately 250 to 260 pounds.
Defendant and the deceased sat in her automobile from 7:30 a.m. until 10:30 a.m. He repeatedly asked her to come home, and she repeatedly refused. Each time that she refused, he struck her. On a number of occasions she attempted to leave the automobile, but he held her arm and would not permit her to leave. While they were sitting in her car, a mail carrier, whom she knew from her place of employment, passed by and said, "I guess somebody must be missing you at work." At about 10:30 she asked the deceased if he was hungry and he replied that he was. He drove to a McDonald's restaurant. While they were driving to the restaurant, she reached for the door several times, but he held her arm the whole time. He continued to hold her arm during the entire time that they entered the restaurant, made their purchases and returned to the car. They sat in the automobile about 5 or 10 minutes. He then said, "I want to take you to work," and she said, "okay."
As he drove toward her place of employment, he told her that he had to go home for something. She asked that he take her to work and then he could go home. He said, "No, you go with me," and she replied she would not go home with him. She grabbed the steering wheel and he struck her in the mouth. She then opened the door and attempted to jump out, but he was holding her arm. He was trying to control the automobile and hold her at the same time. They had been driving north on Kostner Street. He made a right turn onto Washington and stopped the car in a bus loading zone.
She got out of the automobile and he slid across the seat and got out on the passenger side, still holding her arm. He struck her with his fist and knocked her down. He picked her up and knocked her down several times and kicked her while she was on the ground. At one point she tried to crawl under the car, but he grabbed her by the legs, pulled her out and stood her up. He "banged" the back of her head against the roof of the car until she was in a daze. She did not hit or kick him. She testified the beating lasted about five minutes. He then lifted her, threw her into the back seat of her two-door car, got into the car and sped off.
The day before, as she and her father were leaving her parents' home, they had met the deceased. She and the deceased argued and he struck her. She went back into the house and sometime later that day placed a gun which belonged to the deceased into her purse. The next morning she took the purse with her when she went to work. The purse was on the front seat of the car.
The deceased drove east on Washington less than a block, and when he stopped at a traffic signal at Washington and Kildare, the purse apparently fell to the floor. Defendant was in a dazed condition and wanted to leave the automobile. He struck her repeatedly and told her to lie down because he was going to kill her. When the traffic light changed, the deceased turned left onto Kildare, and the contents of defendant's purse slid under the front seat to the back of the automobile. She picked up the gun and fired it. He turned around and with both of his hands grabbed her around the neck. She fired the second shot and got out of the car while it was still in motion. She then ran to her sister's house and called the police. The police took her to the hospital where the deceased had been taken, and then to the police station, where she was questioned. She testified that when she fired the first shot her husband had told her he was going to kill her and she believed him and that when she fired the second shot she believed he was going to kill her.
James Allen testified on behalf of the defendant. About noon on the date in question, he was on the southeast corner of Kostner and Washington getting some bricks from a building which was being razed. He saw a rust-colored compact car park in the bus zone behind his car. He saw a man whom he later identified as the deceased get out of the car, walk around to the passenger side and pull a lady out of the car. He later identified the lady as the defendant. He testified that the man hit the woman with his fists, knocking her to the ground several times. The woman tried to get away by crawling under the automobile, but the man pulled her out. The man "bounced" her head on the car until she collapsed. He then lifted her, threw her headfirst into the back seat of the car and drove away. The car turned north onto Kildare. The beating had lasted about five minutes and the woman never struck or kicked the man. Allen could not recall if the man kicked the woman.
About 5 or 10 minutes later James Allen heard a police siren blowing. He saw the police car turn north on Kildare. He drove his car around the corner and saw that the rust-colored car he had seen earlier had struck a parked car. The man whom he had seen earlier was on a stretcher in the ambulance. A police officer showed Allen an ID card and he identified the picture as being that of the woman whom he had seen earlier in the car. Allen then went to the police station, where he made a written statement.
Ann Davis Hill, defendant's sister, testified that, when defendant was released that evening, she drove her from the police station to their parents' home. She helped bathe her and saw bruises and marks on her body, especially on her shoulders and breasts. She also noticed scratch marks on her neck and that her blouse was dirty and the collar was torn.
Officer Richard Hoffman, called by the appellees, testified that he found the gun and a purse on the right rear seat of the car. He and his partner later went to the house where the defendant had gone, and arrested her. He did not recall seeing any marks or bruises on her or that her blouse was torn, and he did not recall seeing James Allen at the scene. He said that at the time of the arrest the defendant was "crying," "quite upset," "approaching hysteria."
Officer Raymond Adams testified that when he and Officer Hoffman arrived at the scene they saw defendant's car, which had run into a parked car. The defendant was not there. The defendant's car left a skid mark 6 to 10 feet long before striking the parked car. The deceased was on the front seat, unconscious, and bleeding from the head. His buttocks were in the middle of the front seat, and he was lying sideways across the passenger seat with his head hanging over the outer side of the passenger seat. When arrested, the defendant was crying and emotionally disturbed, but he did not recall that her clothes were torn or notice any marks or bruises. He did not recall seeing or talking to James Allen at the scene.
George Stewart testified as an occurrence witness for the appellees. His testimony is extremely difficult to follow. When the court reporter who took his deposition was called by defendant to impeach the witness on one point, the attorney for Everlean Smith stated: "If the court will recall the gentleman had a very severe speech impediment. I don't know how much difficulty the court reporter had in hearing the witness. Moreover, he was completely confused in several places in that deposition. Now, at the end of the deposition I had stopped bothering in trying to straighten him out and elucidate the facts for him and so had John Doyle" (the guardian ad litem).
There is considerable vacillation in his narrative, apparently because of the severe speech impediment. Basically, his version of the incident was that he was in a first-floor apartment at 218 North Kildare about noon on January 20, 1970. He heard a shot and ran to the porch. He saw a car with the driver slumped over the steering wheel screech down the street and slide into a parked white Oldsmobile. A lady in the back seat then backed out of the passenger side of the car and fired a second shot at the man while he was still slumped over the steering wheel. She threw the gun into the back seat of the car and ran. He did not tell the police at the scene what he had seen.
Investigator John Leonard of the Chicago Police Department testified that later that day he took a statement from defendant in which she described the beating and the shooting. He did not recall seeing any marks or bruises. On cross-examination he admitted that James Allen came to the police station while he was interrogating the defendant. He talked with Allen outside defendant's presence, took his statement and included it in his report. On redirect examination the witness was asked and answered:
"Q. Now, with respect to Mr. Allen, I ask you to think back now. I think Mr. Montgomery asked you if he appeared at the 15th District while you were interrogating Rosa Mae Smith, and you said `yes?'
Q. On reflection, is your answer ...