Cowman v. Rogers

McSherry, J., delivered the opinion of the Court. In the appalling and disastrous flood which made desolate the Conemaugh valley in the State of Pennsylvania, on May thirty-first, eighteen hundred and eighty-nine, Walter E. Hoopes, his wife Maria R. Hoopes, and their two children were swept away and perished. Mr. Hoopes’ life was insured at the time in the Order of the Golden Chain, a beneficial association, and the certificate was payable upon his death, to his wife. The regulations of the association provide that if the beneficiary named in the certificate should die in the life-time of the member, and if the latter should make no other disposition of the benefit, it shall be paid to the member’s widow; if no 'widow, then to his children; if no widow or children survive him, then to his mother, and if she be dead then to his father, and failing all these then to the brothers and sisters of the insured.

The Order of the Golden Chain filed a bill of interpleader against the several claimants of the fund and brought the amount payable under the certificate into the Circuit Court of Baltimore City. The claimants of the fund are Mrs. Cowman, a sister of Walter E. Hoopes, and G. Lloyd Rogers,' administrator of Maria R. Hoopes, and also administrator of the two children of Mr. and Mrs. Hoopes. The Court decreed that the fund belonged to the administrator of the children, and from that decree Mrs. Cowman and the administrator of Mrs. Hoopes have each appealed. The only evidence in the record is the testimony of a single eye-witness, the sole survivor of the nine persons who were in the dwelling of Mr. Hoopes at the time the flood demolished it.

Prom that testimony it appears that Mr. and Mrs. Hoopes, their two children, a sister ⁴⁰⁵ of Mrs. Hoopes, Mr. Smith, the witness, his wife and two children were occupants of a frame house in the village of Woodvale, near Johnstown: That Mr. and Mrs. Hoopes and Mr. Smith were in the parlor on thg first floor on the day of the disaster, and that Smith seeing through the windows the waters rising rapidly on the outside rushed out of the room, leaving Mr. and Mrs. Hoopes there, and made his way to the second story where his wife and children and the children and sister .of Mrs. Hoopes then were: That he hurried all of them up the stairway carrying his infant in his arms, and when they reached the attic steps the roof parted and fell, killing the child he was holding, breaking his own arm and precipitating, all of them into the water. Every inmate of the house, except the witness, was lost. By the Roman law, if a father and son perished together in the same shipwreck or battle, and the son was under the age of puberty, it was presumed that he died first, but if above that age, that he was the survivor; upon the principle, that in the former case the elder is generally the more robust, and in the latter, the younger. The Code Napoleon had regard to the ages of fifteen and sixty; presuming that of those under the former age tho eldest survived; and that of those above the latter age, the youngest survived.

If the parties were between those ages, but of different sexes, the male was presumed to have survived; if they were of the same sex the presumption was in favor of the survivorship of the younger. By the Mahometan law of India when relatives thus perish together, it is to be presumed that they all died at the same moment, and such also was the rule of the ancient Danish law. But the common law which governs us knew no such arbitrary presumptions. By that law where several lives are lost in the same disaster there is no presumption of survivorship by reason of age or sex; nor is it presumed ⁴⁰⁶ that all died at the same moment.

Survivorship .in such a case must he proved hy the party asserting it. No presumption will he raised hy balancing probabilities, that there was a survivor or who it was. Wing vs. Angrave, 8 H. L. C., 183; Underwood vs. Wing, 4 De G., M. & G., 633; Johnson vs. Merithew, 80 Maine, 111; Newell, et al. vs. Nichols, et al., 75 N. Y., 78 ; 1 Green. Ev., secs. 29, 30; Best’s Principles of Evidence, 304; 2 Wharton’s Law of Ev., secs. 1280, 1281, 1282; 2 Kent’s Com., 572.

Whether Mr. and Mrs. Hoopes were drowned, or were killed hy the falling of the house; and whether their children were also