Sporrer v. Ady

Digges, J., delivered the opinion of the Court. The single question to be decided upon this appeal is, Did Lyda, Ady Sporrer survive her husband, Frederick M. Sporrer ? If she did, the decree appealed from should, be affirmed; if she did not, it should be reversed. The situation which makes a decision of this question necessary was produced by the following proven and conceded facts: That in the year 1922 the Phoenix Mutual Life Insurance Company issued a policy upon the life of Frederick M. Sporrer in the sum of ten thousand dollars, which policy was in full force at the time of the death of Frederick M. Sporrer; that by the terms of the policy 'Lyda: Ady Sporrer, the wife of the insured, was made the beneficiary, provided she survived the said Frederick M. Sporrer, and it was stipulated in said policy that if she did not survive her said husband the proceeds of the policy should be payable to the estate of the .said Frederick M. Sporrer; that on November 25, 1923, at about 7:00 o’clock P. M., Frederick M. Sporrer and Lyda Ady Sporrer were thrown from an automobile in which they, together with their six-year-old son, Mrs. Sporrer’s sister, M. Cassandra Ady, her brother, Benjamin W. Ady, his, wife, and infant child were riding; that from injuries sustained at the time of this accident both Mr. and Mrs. Sporrer died; that after the accident Mrs. Sporrer was placed in a F'ord automobile and taken to the Johns Hopkins Hospital, while her husband was taken to St. Joseph’s Hospital in a, Chevrolet; that according to the hospital records, both Mr. and Mrs. Sporrer reached the respective hospitals at the same time, 7:30 P. M., and that both were found dead upon arrival; that the accident happened after dark at about 7:00 P. M., at a point on the Harford Road near the village of Carney, from one-quarter to one-half mile from the Joppa Road.

That St. Joseph’s Hospital is from seven to nine ⁶² city blocks nearer to the scene of the accident than Johns Hopkins Hospital. The appellant, Matthew Sporrer, duly qualified as administrator of his deceased son, Frederick M. Sporrer, and the appellee, M. Cassandra Ady, qualified as administratrix of her deceased sister, Lyda Ady Sporrer. The appellant and appellee each claiming the proceeds of the insurance policy, the insurance company filed in the Circuit Court of Baltimore City its bill of interpleader; whereupon the court passed a decree requiring the parties to interplead, and ordered, that Matthew Sporrer, administrator, should be plaintiff, and M. Cassandra Ady, administratrix, should be defendant. After taking testimony in open court, and argument, the learned chancellor, by decree dated March 5th, 1925, adjudged and ordered that M. Cassandra Ady, administratrix of Lyda A. Sporrer, is entitled to receive the proceeds of the policy of insurance.

From that decree this appeal is prosecuted. Chapter 108 of the Acts of 1920, now codified as section 11 of article 35 of the Code, provides: “If several persons respectively entitled to inherit from one another should, after the passage of this act, perish in the same calamity, such as a wreck, collision, battle, conflagration, flood, earthquake, storm or accident, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, survivorship shall be presumed from the probabilities resulting from the strength, age and difference of the sexes, according to the following rules: * * 'x' “E. If those who have perished together were above the age of fifteen years, and under the a'ge of sixty years, and the sexes be different, the male shall be presumed to have survived.” The husband and wife, who perished as a result of the same accident, were both between the ages of fifteen and sixty years, Mr. Sporrer being forty-three and his wife thirty-six years of age. Does the statute above quoted apply to a case of this character? We think not.

Prior to the ⁶³ enactment of this legislation there was no presumption of survivorship and it was incumbent upon the party alleging tc" establish it. Cowman v. Rogers, 73 Md. 405 . In that case there was no means of determining which of the parties survived, and no circumstances from which it could be inferred. The case grew out of the death of husband and wife as a result of the Johnstown flood, and the only fact proven relative to the issue of survivorship was that, when the flood waters submerged a'ifd destroyed their home, the husband and wife were together in the living room on the first floor of the house, and were never again seen.

It is apparent that any decision as to which one survived the other could be based only upon speculation and conjecture. The case of McComas v. Wiley, 134 Md. 572 , decided June 24th, 1919, before the passage of the act, arose by reason of the accidental death of Mr. and Mrs. Charles L. Wiley. An automobile in which they and other persons were riding was struck by an express train, causing injuries to Mr. and Mrs. Wiley, from which they both died, either instantaneously or in a very short time. There were a; number of witnesses who testified that Mrs. Wiley was alive for as long as fifteen minutes after the accident, while others, including expert medical witnesses, testified that her death was instantaneous.

As in Cowman v. Rogers, supra, this Court, speaking through Judge Urner, held: “In such a situation it is necessary that a claim which is dependent upon the occurrence of the deaths in a particular order shall be supported by satisfactory proof of the sequence of events thus relied upon, and in the absence of such evidence there is no certain basis upon which the asserted right can be sustained.” From the evidence, although conflicting, this Court found the fact that Mrs. Wiley survived her husband. The Act of 1920 was passed shortly after this decision. The question therefore is, Does the statute apply to eases where there is positive testimony, though opposite and conflicting, or is it only applicable in that class of cases where ⁶⁴ there is a total absence of testimony as to the fact of which one died first? The presumptions expressed in the statute do not arise, as seen by its language, unless “it is not shown who died first and there are no particular circumstances from which it can be inferred.” The present case presents an issue as to a single fact,, to wit: Did Mrs. Sporrer outlive her husband ?

More than twenty-five witnesses were sworn and gave admissible and pertinent testimony in support of the contentions of the plaintiff or the defendant on the issue. It cast upon the learned judge the duty of determining the fact from the evidence, and in no way differs from all cases where the existence of a fact is disputed, and the evidence thereof is conflicting and contradictory. We are of the opinion that section Yl of article 35' is limited in its application te that class of cases in which there is no evidence as to who-died first, and no particular circumstances from which survivorship could be inferred, of which class Cowman v. Rogers is an illustration, and does not apply to the present case. A careful study of the record establishes certain facts,, clearly and beyond dispute, viz., that about seven minutes after the accident Mrs. Sporrer was placed in' a Pord touring car and sent to Johns Hopkins Hospital; that she was' alive at the time she was placed in the car; that when the Ford car reached the Joppa Road, from one-fourth to one-half mile from the scene of the accident, Mrs. Sporrer wa's seen leaning sidewise out of the car by the appellant’s witness, Clarence E. Everett, who was riding on the running board of the car; that witness pushed her back in the car, and as he did so she seemed to take a' long breath, and fell back across the seat, and was not seen to move again; that it sounded to witness “as if there was a weight came on top of her and forced the breath out of her body”; that' at that time witness called to the driver of the car and said, “This lady in back here is gone”; that Mrs. Sporrer was dead when ⁶⁵ she arrived at the hospital, which was at 1:30 P. M., according to the hospital records.

From the above it is positive that Mrs. Sporrer died between the time she was put in the Ford car and the time the car reached the hospital; 'and the great probability is that she died at the time when the car reached Joppa Road, as described by the witness Everett. The evidence further discloses that the husband, Frederick M. Sporrer, was not removed from the scene of the accident until some time after his wife, the time varying, according to the appellant’s witnesses, from ten to thirty minutes, and according to the appellee’s witnesses, from three to six' minutes. The longest time testified by any of the witnesses between the time Mrs. Sporrer was taken away and the time her husband was taken away, was thirty minutes; and while this does not seem, probable when all of the evidence on this point is considered, it is, nevertheless, reasonably certain that this interval was at least five minutes, as no witness testifies positively that it was less than five minutes, and the probability is that it was from ten to fifteen minutes. There was no evidence of any witness actually timing1 this interval; and if we assume, as we must, that all of the witnesses on this point were endeavoring to tell the truth according to their best judgment, then the average judgment of all the witnesses who testified on the point is that the interval was fourteen minutes.

The records of Johns, Hopkins and St. Joseph’s Hospitals show that, the bodies of Mr. and Mrs. Sporrer reached these hospitals at the same timo, J :30 P. M.; and while these records may not be accurate as to the time, there is no testimony in the record which proves their incorrectness; and even if their’ bodies did arrive at the hospitals a few minutes before or after 1 \ 30, there is no evidence to show, and we are not justified in concluding, that they did not arrive at the same time. This being; true, it is certain that.the difference-in time at which the two cars left the scene of the accident was sufficient to enable the ⁶⁶ car in -which Mrs. Sporrer was, to travel from seven to nine city blocks farther, and yet arrive at the hospital at the same time as the other ear. If Mrs. Sporrer died in the Ford car at the time it reached Joppa Road, which is not more than half a mile from the scene of the accident, then it is •certain that she died before her husband was removed from the scene of the accident; and this brings us to the question of whether or not Mr. Sporrer was dead at the time he was put in the Chevrolet machine. The evidence by the various