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04/22/87 Joanne Prater, v. J. C. Penney Life

April 22, 1987





508 N.E.2d 305, 155 Ill. App. 3d 696, 108 Ill. Dec. 144 1987.IL.530

Appeal from the Circuit Court of Cook County; the Hon. Richard H. Jorzak, Judge, presiding.


PRESIDING JUSTICE McNAMARA delivered the opinion of the court. WHITE and FREEMAN, JJ., concur.


Plaintiff Joanne Prater sued J. C. Penney Life Insurance Company for breach of contract when it refused to pay plaintiff accidental life insurance benefits because it found that the named insured, John Prater, died while committing or attempting to commit an assault or felony. Following a trial without a jury, the court entered judgment in favor of defendant. Plaintiff appeals, contending that the trial court's decision is contrary to the manifest weight of the evidence.

At the time of the death of plaintiff's husband, he was covered under a $15,000 life insurance policy issued by defendant and listing plaintiff as the beneficiary. Defendant denied coverage under a provision which excludes coverage when the insured's death is an indirect or direct result of "the commission or attempted commission of an assault or felony by such Insured."

Willie Falls, an eyewitness, testified for plaintiff that on January 11, 1980, at approximately midnight, he arrived at a tavern in Chicago. Shortly thereafter, Falls observed decedent and another man wrestling. Decedent appeared to be drunk. Falls was five to six feet away and had a clear view of decedent, whose hands were empty. Cad Shannon, an off-duty police officer, separated the two men. While Shannon was standing between Falls and decedent, he pushed decedent to the ground. Shannon shot decedent once in the head and then uttered a racial epithet. Falls saw nothing in decedent's hands. Shannon returned his gun to his holster, stepped up to decedent, and then stepped back again. These events took place in less than 30 seconds. Falls left the tavern immediately. Falls testified further that he did not know what started the argument and that he did not hear any of the comments exchanged between the participants. Falls did not hear decedent threaten anyone, and he did not hear Shannon identify himself as a police officer.

Cad Shannon testified for defendant that he had been a police officer for 16 years and carried a handgun while off duty. On the night in question, Shannon was at the tavern for about one-half hour and drank one shot of whiskey. He then left the tavern and returned at about 10:30 p.m. Several minutes later, Shannon heard a commotion and heard his name being called, possibly by Jones, one of the tavern's owners who was present. Shannon approached decedent, Jones, and McDonald, a man whom Shannon knew. Shannon saw that decedent held a weapon in his hand, which was perpendicular to his side.

Shannon asked twice what was happening. Decedent turned his back to Shannon and appeared to be talking to Jones. Shannon drew his gun and held it next to his right leg. Decedent turned toward Shannon, who stepped toward decedent, told decedent not to move, and again asked decedent what was happening. As decedent turned toward Jones, Shannon moved closer. Decedent raised his gun and pointed it at Shannon. Shannon raised his gun and fired one shot, hitting decedent in the head.

Decedent fell against the wall and slid to the floor. Shannon placed his foot on decedent's weapon, which was still in decedent's right hand, until Shannon determined that he was dead. Shannon then locked the tavern door to prevent customers from leaving before the police arrived. Shannon returned to the body, but did not touch the body or the gun. The police arrived several minutes later.

Officer Michael Tolliver testified for defendant that Tolliver and his partner had first received a dispatch regarding a robbery in progress at the tavern and within 20 seconds received a second dispatch reporting that a man had been shot at the tavern. Tolliver arrived at the tavern shortly after the shooting, between 10:30 p.m. and 11:30 p.m. Decedent's body was slumped against the wall. A loaded gun was in decedent's right hand, with one finger inside the trigger guard and the thumb near the butt of the gun. Tolliver had previously worked with Shannon.

Dr. Robert Stein, the chief medical examiner for Cook County, testified regarding the autopsy which he performed on decedent. The bullet entered decedent's forehead. Because the bullet followed a straight path, it was not possible to determine the bullet's angle of entry into the skull. Dr. Stein testified that stippling, which is gun powder found within the skin, was approximately 2 1/2 inches in diameter. Stippling can be used to determine the distance from which a weapon was fired. In Dr. Stein's opinion, the weapon was fired one to three feet away from decedent. Dr. Stein qualified his opinion by stating that he was not a ballistics expert and that to accurately determine the distance it would be necessary to consider factors such as the weapon's ballistics, age, condition, and rifling and the ammunition's ballistics, type, charge, and age. Dr. Stein had not considered any of these factors. If he were to consider these factors, Dr. Stein might change his opinion regarding the distance from which the weapon was fired.

Plaintiff contends that the trial court's finding in favor of defendant was against the manifest weight of the evidence. In a bench trial, the court is in the best position to observe the demeanor of the witnesses, Judge their credibility, and determine how much weight to give their testimony. (Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 469 N.E.2d 183.) Where the findings of fact must be determined from the credibility of the witnesses, a reviewing court will defer to those findings unless they are against the manifest weight of the evidence. ...

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