State Farm Life Insurance v. Smith

MR. JUSTICE DOOLEY, dissenting:

The majority, in my opinion, has violated our system of appellate review. Not only does it hold for naught the finding of a trial court in a nonjury case, a finding affirmed by the appellate court, but it performs the function of a nisi prius court. It determines the credibility of the witnesses, draws inferences of fact, and then arrives at a conclusion it considers more reasonable; this determination, however, differs from that of both the circuit and appellate courts. Such is not the office of this court.

As the majority points out, the very able circuit judge, Walter P. Dahl, specifically found, after seeing and hearing the witnesses, that the 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.”

It is, of course, well established that this court will not disturb the findings made by a trial court in a nonjury case.

The rule is both well expressed and well explained in Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352 , 356:

“Although a trial court’s holding is always subject to reivew, this court will not disturb a trial court’s finding and substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. (Brown v. Zimmerman, 18 Ill. 2d 94, 102 ; Illinois Nat. Bank & Trust Co. of Rockford v. County of Winnebago, 19 Ill. 2d 487, 495 ; Mortell v. Beckman, 16 Ill. 2d 209 .) Underlying this rule is the recognition that, especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of facts, have come to a different conclusion.”

(See Turner v. Board of Education (1973), 54 Ill. 2d 68, 72-73 ; Reese v. Melahn (1973), 53 Ill. 2d 508, 512-13 ; Kenny Construction Co. v. Metropolitan Sanitary District (1971), 52 Ill. 2d 187, 196 .) In each instance this court reversed the appellate court for setting aside the finding of the trial court in a nonjury action.

In fact, this principle is so well established that today marks the first time in the history of Illinois jurisprudence that such a finding in a nonjury case, affirmed by the appellate court, has been set aside by this court as contrary to the manifest weight of the evidence.

The majority opinion says that the circuit court might have erred on the issue of the burden of proof. It states:

“ ‘The Trial Court held that the burden of going forward with the proof was that of Everlean Smith and 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. ”

In neither the appellate court nor in this court was any error in the burden of proof charged by defendant. Accordingly, that issue is not before us. Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75 .

There was no misconception in the burden of proof. This is manifest from the appellate couYt opinion:

“At this juncture, since the parties disagree on the application of the term, we deem it appropriate to discuss the ‘burden of proof.’ The phrase has been used to mean either the necessity of establishing a fact, that is, the burden of persuasion, or the necessity of making a prima facie showing, that is, the burden of going forward. (See McCormick on Evidence sec. 336 (2d ed. 1972).) The pleadings established that Jesse Smith was dead and that the defendant was named beneficiary. That being so, the trial court correctly ruled that the contingent beneficiaries had the burden of going forward and also the burden of proving that Rosa Mae Smith was barred from recovery. One claiming the proceeds of a life insurance policy as against the named beneficiary has the burden of establishing his claim. (44 Am. Jur. 2d Insurance sec. 1977; Minnesota Mutual Life Ins. Co. v. James, 202 F. Supp. 243 .) Once the contingent beneficiaries established that the defendant had killed the deceased, the burden was then on her to ‘go forward’ with the introduction of some evidence showing circumstances justifying or excusing her acts, unless it was sufficiently manifest from the proof on the part of the contingent beneficiaries that she was justified or excused in committing the homicide. But once evidence of self-defense was interposed, whether by the contingent beneficiaries or the defendant, the overall burden of persuasion was placed on the contingent beneficiaries to show that it was more probably true than not true that the defendant did not act in self-defense. Cf. People v. Warren, 33 Ill. 2d 168, 173 , 210 N.E. 2d 507 .” State Farm Life Insurance Co. v. Smith (1975), 29 Ill. App. 3d 942,947 .

On burden of proof, we have this situation:

(1) The contingent beneficiaries have the burden of proving that the defendant beneficiary was barred from recovery;

(2) Once it was established that the defendant beneficiary had killed the deceased, the burden was upon her to justify her act; and

(3) Once evidence of self-defense was introduced, the burden of persuasion was on the contingent beneficiaries.

The key question in the posture of the case as it stood was whether the defendant’s action constituted an unjustified killing of the deceased. That this could not be error is obvious from the specific finding of the circuit court. It concluded that the defendant had without cause killed the deceased, and could not take the proceeds of the insurance policy.

Unfortunately, the majority opinion is dedicated to dissolving the improbabilities that the appellate court noted in affirming the finding of the trial court. To set aside the judgment of both the circuit and appellate courts means that there must be resolved, favorable to the defendant beneficiary, the following:

(1) The defendant beneficiary was carrying a gun in violation of law (Ill. Rev. Stat. 1969, ch. 38, par. 24 — 1(a)(4); Municipal Code of Chicago, Public Peace and Welfare sec. 193 — 30). She had placed a gun in her handbag either the day of the shooting or four months prior thereto, depending upon which version of the defendant is accepted. Obviously this was an act done with deliberation, and for the purpose of using this firearm.

(2) Although she contended that throughout the morning she was subject to the deceased’s control, she admits spending three hours with him discussing their marriage and even leaving the car to go to McDonald’s for hamburgers. Certainly she could have made known her plight — if it was as she described — to those in the hamburger stand.

(3) As the car slowed down, the gun in the purse somehow slid out from under the front seat, as if through some magic power. However, she stated that she could have told Officer Leonard she pulled it from her purse.

(4) If that were not enough, she fired it once with the bullet striking the deceased in the head. She then states that the deceased was choking her so she fired a second shot into his head. One of the two bullets lodged in the brain. Whether it was the first or second is not known. Two shots in the head of an alleged aggressor make a plea of self-defense paradoxical. It is comparable to an alleged aggressor being found shot in the back. Certainly no Deadwood jury of “Wild Bill” Hickcock’s era would accept this contention. The trial judge was on solid ground.

(5) The defendant beneficiary contended the deceased had physically abused her, striking her at least eight times during the initial three hours they were together, as well as several times immediately prior to the shooting. So also it was contended on her behalf that there were bruises on her shoulder and arm, and her blouse was tom after the killing. Yet certain evidence makes this improbable. Shortly after the occurrence at the police station she gave no reason for shooting a man. Would it not be natural for the defendant to state why she shot a man?

The police who interviewed her saw no bruises, markings or bleedings on her person. Nor were any tears or rips in her clothing observed. Better yet, this evidence of her physical condition was dissipated by pictures taken by the police.

(6) Officer Hoffman testified that when he questioned her, she said: “It’s his gun. I took it with me this morning because I was sick of him messing on me.” Investigator Leonard testified defendant told her she had possession of the gun for about four months prior to the shooting. These are illustrative of the many contradictions in her testimony.

(7) Most important of all is the evidence of the eye witness, George Stewart. The majority would discount his testimony because of a speech impediment, saying:

“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. ”

But what did Stewart contribute? He heard a shot from a nearby apartment. He then saw a car go down the street with a man in the driver’s seat leaning over the steering wheel. This car hit a parked car. He ran down the stairs. He then saw a woman, the defendant, exiting from the right door with a gun in her hand. He heard a second shot as the woman was leaving the car. She threw the gun in the back of a car where the police found it. She ran down the street. Defendant admittedly went to the apartment of her cousin from which the police were called.

Obviously this evidence was directly contrary to the contention of the defendant. The facts as related by Stewart nullified defendant’s contention.

It has been said that the written word is as different from the spoken word as the portrait of a man differs from the man himself. The circuit judge observed Stewart testifying on direct and cross-examination. His demeanor and general characteristics manifested on the stand do not appear in this lifeless record. Only those who saw and heard Stewart knew the full impact of his testimony.

Such circumstances as these prompted one of the great judges in the history of this court to make part of our decisions an excellent description of the gulf between the trial judge and the reviewing court. We repeat it here with the hope that it shall serve as an admonition to reviewing courts. In Kettlewell v. Prudential Insurance Co. of America (1954), 4 Ill. 2d 383, 393-394 , Mr. Justice George W. Bristow, a man who brought to this court almost three decades of experience as a circuit and appellate judge, quoted:

“ ‘He [trial court] sees and hears much we cannot see and hear. We well know there are things of pith that cannot be preserved in or shown by the written page of a bill of exceptions. Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a court of last resort. She oft hides in nooks and crannies visible only to the mind’s eye of the judge who tries the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the clamness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. The brazen face of the liar, the glibness of the schooled witness in reciting a lesson or the itching over-eagerness of the swift witness, as well as honest fact of the truthful one, are alone seen by him. In short, one witness may give testimony that reads in print, here, as if falling from the lips of an angel of light and yet not a soul who heard it, nisi, believed a word of it; and another witness may testify so that it reads brokenly and obscurely in print, and yet there was that about the witness that carried conviction of truth to every soul who heard him testify.’ ” Creamer v. Bivert (1908), 214 Mo. 473,479 , 113 S.W. 1118,1120 .

To me it is patent that the majority has overloaded the circuits, so to speak, in reversing the judgments of both the circuit and appellate courts on so narrow a line. The words “manifest weight of the evidence” are no magic talisman by which a judgment dependent upon the credibility of witnesses and the inferences to be drawn from the trier of the facts may be overturned.

The significance of these words is best defined by appellate court opinions. “Manifest weight of the evidence” is not a conjunction of grammarians, so to speak; these words have a definite meaning at law. “To be against the manifest weight of the evidence requires that an opposite conclusion be clearly evident.” (Arboit v. Gateway Transportation Co. (1957), 15 Ill. App. 2d 500, 507 ;Griggas v. Clauson (1955), 6 Ill. App. 2d 412, 419 .) “Manifest weight has been defined as that weight which is clearly evident, clear, plain and indisputable. ” (Singles v. Horwitz (1975), 34 Ill. App. 3d 973, 975 .) “By manifest weight is meant the clearly evident, plain and indisputable weight.” Wisniewski v. City of Chicago (1974), 20 Ill. App. 3d 650, 653 .

There is, of course, a distinction between “weight of the evidence” and “contrary to the manifest weight of the evidence.” Mr. Justice O’Connor, who wrote many leading opinions in his years in the appellate court, described this in reversing a judgment where the trial court had refused to pass on the weight of the evidente on amotion for new trial. He observed:

“ ‘*** It is then the duty of the trial judge to consider the weight of the evidence and if he is of opinion that plaintiff has not proven his case by a preponderance of the evidence, taking into consideration the fact that the jury has found otherwise, it is his duty to set aside the verdict and grant a new trial. And if the court does not do so but overrules the motion and enters judgment and the case is then brought to this court, we are not authorized to disturb the verdict on this ground unless the verdict and judgment are against the manifest weight of the evidence. This court in passing on the question must take into consideration not only the verdict of the jury but the fact that the trial judge saw and heard the witnesses, overruled the motion for a new trial and entered judgment. It requires much more for this court to set aside a verdict and judgment than is required of the trial judge.’ ” Read v. Friel (1946), 327 Ill. App. 532,542 .

It is obvious that the manifest weight of the evidence is a judicial cat-o ’-nine-tails reserved for extraordinary situations. This obviously is not such. We have far less ability to judge the facts than the circuit judge. Nor can we profess to read a record with more expertise than the appellate court.

Today the stability of the Illinois appellate process has been deeply affected. A judgment in a nonjury case, although affirmed by the appellate court, has been reversed by this court simply because it considered other conclusions more reasonable than those of both the trial and appellate courts.

When this court undertakes to reverse a judgment entered in a nonjury trial and affirmed by the appellate court because this court feels other inferences can be made, we are not aiding the cause of sound judicial administration. When will a litigant know he has a final judgment on the facts if this court is to pursue such a course of conduct?

The long-range effect of this opinion is to encourage appellate courts to reverse judgments on the manifest weight of the evidence — a condition from which in yesteryear there was no remedy. (See Olson v. Chicago Transit Authority (1953), 1 Ill. 2d 83 ; Petty v. Illinois Central R.R. Co. (1957), 11 Ill 2d 485.) In the past the only alternative was for a party to consent to a final adverse judgment in order to seek leave to appeal to this court. (Bowman v. Illinois Central R.R. Co. (1957), 11 Ill. 2d 186 , cert, denied (1957), 355 U.S. 837 , 2 L. Ed. 2d 49 , 78 S. Ct. 63 .) The Judicial Article of 1962 (Ill. Const. 1870, art. VI, sec. 5) has corrected this unwholesome situation. It was not the intent of that article or the Constitution of 1970 (art. VI, sec. 4(a)) to perpetrate this unhealthy condition by transferring from the appellate court to this court the power to set aside a finding in a nonjury case as contrary to the manifest weight of the evidence when that finding had been affirmed by the appellate court. More than that, the fact remains that this court is not wont to grant petitions for leave to appeal where the appellate court has reversed on the manifest weight of the evidence.

I would affirm the judgments of the circuit and appellate courts.