Darby v. Schoolcraft

Dissenting Opinion

Kendall, J.,

Dissenting. — I am unable to agree with the majority opinion. It seems to me to reach the decision that the majority has, that this court has weighed the evidence.

I agree with that portion of the majority opinion which is as follows:

“The sole question for this court to determine in deciding the correctness of the decision of the trial court is whether or not there is evidence of probative value that Mrs. Dillender died prior to Mr. Dillender.”

In arriving at the answer to that query, I am guided by the general rule that where the evidence is conflicting, the reviewing court will consider only the evidence most favorable to the party in whose favor the judgment was rendered. Deep Vein Coal Co. v. Dowdle (1946), 224 Ind. 244 , 66 N. E. 2d 598 .

The evidence most favorable to the appellee was that the body of Robert Dillender was found lying on the living room floor, dead. The body of Mrs. Dillender was found lying in some bushes on the south side of the second house down the street about one hundred to one hundred and twenty feet from the Dillender home, dead from a gunshot wound in her abdomen. In the Dillender home a 32-20 revolver was found which was jammed and empty shells found on the back porch. A *446 32 caliber automatic was found in the living room about a foot from Mr. Dillender’s feet; that at first two shots were heard by neighbors and within ten to twelve minutes, two more shots were heard. One of the neighbors heard Mrs. Dillender say, “Oh, Bob, don’t do that,” and then heard the second shot. There was evidence that Robert Dillender had two wounds, but, in the opinion of the coroner, the first one was not fatal; that the fact that Mrs. Dillender moved a distance of one hundred and twenty feet indicated she did not have an immediate fatal wound or lose control of her faculties. The trial court was not favored by either party with expert testimony; neither did the doctor testify who performed the autopsy. Thus the court was required to make his finding on this particular matter from the testimony of the coroner and the neighbors.

I believe that the evidence is of sufficient probative value from all the facts and circumstances submitted to sustain the court’s finding that Robert Dillender survived Mrs. Dillender. There was evidence from which the court could and did find that Robert Dillender shot Mrs. Dillender; that she died as a result of a gunshot wound fired by him, which gun was found lying at his feet where he was found dead; that considering the location of the respective bodies, the place where the shots were fired, the elapse of time between the two groups of shots are indicative that he survived her by not less than five minutes.

In view of the general rule as given herein, we cannot substitute our opinion for that of the trier of the facts. Brigham et al. v. Hubbard et al. (1888), 115 Ind. 474 , 17 N. E. 920 .

I recognize the rule of law that evidence that will support a finding must be of substantial and probative value. Pennsylvania R. Co. v. Rizzo (1949), 119 Ind. *447 App. 505 , 86 N. E. 2d 91 . Considering that rule of law with the testimony which the court had before him, it is my opinion that the testimony was substantial and had sufficient probative value to support the findings of the trial court. American Steel, etc., Co. v. Carbone (1915), 60 Ind. App. 484 , 109 N. E. 220 . It is equally well settled that this court cannot weigh the evidence for the purpose of determining the preponderance of the evidence. Isler v. Bland (1888), 117 Ind. 457 , 20 N. E. 303 . A preponderance of the evidence is determined not, of course, by the greater number of witnesses but by the greater weight of the evidence. The trial court heard the witnesses, observed their manner of conduct and found adversely to the appellant in this case. Having done so estops this court from weighing the same and reversing the decision thereof.

This court recently held in the case of Mellen v. Knotts (1954), 125 Ind. App. 113 , 121 N. E. 2d 435 (Transfer Denied), that a reviewing court cannot substitute its judgment for that of the trial court as to what facts were established by the evidence where the finding of a trial court, sitting without 'a jury, is supported by at least some evidence.

Courts are not free to re-weigh the evidence and set aside the verdict, be it the court or jury, merely because the court trying this case could have drawn different inferences or conclusions or because judges feel that other results are more reasonable. Tennant v. Peoria & Pekin Union Railway Co. (1944), 321 U. S. 29 , 64 S. Ct. 409, 412 , 88 L. Ed. 520 . See also Dowler v. New York, Chicago & St. Louis Railroad Co. (1955), 5 Ill. 2d 125 , 125 N. E. 2d 41

The same rule could apply to the instant case being tried by the court. On the belief of the general ruling *448 and authorities cited, I believe the judgment should be affirmed.

Kelley, P. J., concurs in dissent.

Note.—Reported in 125 N. E. 2d 812 .