Opinion
No. 41449.
March 13, 1950.
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, AMANDUS BRACKMAN, J.
Charles S. Sigoloff, Sigoloff sigoloff, St. Louis, for John J. Stewart, plaintiff-appellant.
Suelthaus Krueger, and G. H. Suelthaus, St. Louis, Fred A. Gossom, St. Louis, for respondents.
Action to try, ascertain and determine, and to quiet title, in which action ultimate issues of devolution of title to real estate are dependent upon factual questions of survivorship.
In the late afternoon or early evening of October 29, 1946, the badly decomposed bodies of Helen Irene Stewart Knight and George A. Knight, husband and wife, and of Margaret Stewart, daughter of Helen, were found in the Knight residence, a one-story frame four-room-and-bath bungalow in St. Louis County. The bodies of Helen and George were lying on a bed in the northeast (rear) bedroom of the residence, and the body of Margaret was found lying on the bed in the southwest (front) bedroom. The three had died of carbon-monoxide poisoning.
Margaret Stewart was the daughter of Helen Irene Stewart Knight by former marriage to John J. Stewart, plaintiff-appellant. The defendants constitute the heirs at law of Helen and of Helen's second husband, George A. Knight. At the time of her death, Helen was the owner of the residence, title to which is involved herein. Obviously, plaintiff (former husband of Helen and father of Margaret) has no interest whatever in the property if Margaret did not survive her mother, Helen; so it is the theory of plaintiff's case that Margaret survived her mother. Defendants, brothers and sister of Helen, by answer and counterclaim, alleged that Helen survived George and Margaret; and defendants, heirs at law of George, by separate answer, admitted their claim of title to the property and denied plaintiff's ownership. All of the parties prayed for a judgment and decree determining and quieting title.
(We have noted the deaths of Helen, Margaret, and George occurred in 1946, prior to the effective date of the Uniform Simultaneous Death Act of Missouri. See Vol. I, Laws of Missouri 1947, pp. 13-14, Mo.R.S.A. §§ 317.1 to 317.8, particularly Section 5 of the Act, Laws of Missouri, supra, p. 14, Mo.R.S.A. § 317.5.)
The trial court, having heard the evidence introduced, found it impossible to ascertain that Margaret survived George and Helen, or that George survived Helen and Margaret, or that Helen survived Margaret and George — "facts of the time of the deaths are not capable of being judicially ascertained." The trial court further found the three died simultaneously; and the court concluded the law to be that "there is no presumption of law as to survivorship in the case of a common disaster or calamity; that he, who claims a right by virtue of survivorship must prove by the preponderance and greater weight of the evidence, the fact of survival of the person through whom he claims." The trial court also concluded that, since there was no proof any one survived another or the others, the three are "presumed to have died simultaneously and in the same common disaster * * * and that under the law, the real estate * * * descends to the heirs at law of Helen Irene Stewart Knight, who are her brothers, Dave Landsbury and Louis Arthur Landsbury and her sister Grace Russell, and none others." Plaintiff, father of Margaret, has appealed. Defendants, heirs at law of George, have perfected no appeal.
In this action tried by the trial court without the services of a jury, we will review the case upon both the law and the evidence, as in actions of an equitable nature. The judgment will not be set aside unless clearly erroneous. Section 114 (d), Civil Code of Missouri, Laws of Missouri 1943, p. 353, at page 388, Mo.R.S.A. § 847.114(d).
However, before we approach a review of the evidence, we will dispose of contentions of plaintiff-appellant based on the trial court's finding the three persons died simultaneously, and on the trial court's legal conclusion there was a presumption the three died simultaneously.
We agree with plaintiff-appellant in his contention the evidence, reviewed infra, does not support the finding of fact that the three died simultaneously; and we also agree there is no presumption of the simultaneous death of the three, even in the absence of proof that any one survived the others. In a memorandum filed when the motion for a new trial was overruled, the learned trial judge noted that his conclusion of law relating to the presumption of simultaneous death was erroneous. However, he was of the opinion, which we share, that the error was not prejudicial to plaintiff-appellant. If the evidence did not sustain a finding of survivorship, the devolution of the title to the property was properly determined as if the three died simultaneously.
"In all jurisdiction that proceed according to the policy of the common law there is no presumption as to survivorship in case of a common calamity. The rule is that he who claims a right by virtue of survivorship must prove the fact of the survival of him through whom he claims, and that, failing in this, the property or fund remains vested as it was before the calamity." United States Casualty Co. v. Kacer, 169 Mo. 301, 69 S.W. 370, 371, 58 L.R.A. 436, 92 Am.St.Rep. 641; Abrams v. Unknown Heirs of Rice, 317 Mo. 216, 295 S.W. 83; 25 C.J.S., Death, § 11 pages 1069-1071. And there is no presumption of simultaneous death. There is no presumption of survivorship, one way or the other. Each case is to be decided on its own facts and, if survivorship of one or another be an essential element in a case, the party asserting it has the burden of proving it. Abrams v. Unknown Heirs of Rice, supra; Aley v. Missouri Pac. R. Co., 211 Mo. 460, 111 S.W. 102; Garbee v. St. Louis-San Francisco R. Co., 220 Mo.App. 1245, 290 S.W. 655. Absent evidence from which survivorship may be reasonably inferred, devolution of property of necessity is determined on the theory the deaths occurred simultaneously, not because the fact of simultaneous deaths is presumed, but because he who asserts the contrary has failed to prove it. Abrams v. Unknown Heirs of Rice, supra; 25 C.J.S., supra; In re Sweeney's Estate, 78 Pa. Super. 417; Vol. 1, Jones Commentaries on the Law of Evidence, 2d Ed., § 296, pp. 492-494.
The carbon monoxide which permeated the atmosphere in the bedrooms of Helen and George and of Margaret originated in a defective gas water heater in the basement of the residence building. The water heater was located close to a hot-air furnace. The water-heater burner imperfectly consumed gas. The water heater had no vent pipe and the imperfectly combusted carbon-monoxide-bearing fumes could go freely out of the vent at the top of the water-heater housing and could diffuse. About three feet above the open vent of the defective water heater, there was an open hot-air pipe extending from the crown of the hot-air jacket of the furnace. We infer this hot-air pipe was open for the purpose of heating the basement. Five other hot-air pipes led to the various rooms of the residence building. The pipe leading to the bedroom used by Helen and George was 11 feet long; and the pipe leading to the bedroom used by Margaret was 7 1/2 feet in length. The pipe leading to Margaret's room was the second pipe from the water heater — the pipe leading to the room of Helen and George was the fifth. There was evidence introduced tending to show that in the early evening of October 29th the hot-air register in Margaret's room was closed, and that the register in the room used by Helen and George was open. Near the southwest corner of Margaret's room there was a small hole, approximately 2" x 2 1/2" in size, through the floor into the basement. Margaret's room was 11' x 12' in dimension; and the room occupied by Helen and George was slightly larger, 11' 8" x 12'; the ceilings of the two bedrooms and of the other rooms of the house were 8 1/2 feet from the floors.
Autopsies performed October 30th disclosed 77% saturation of carbon monoxide in the blood of Helen, 60% in the blood of George, and 47% in the blood of Margaret. Helen was 5 feet 2 inches in height, and weighed about 170 pounds; she was 38 or 39 years old. George was 5 feet 8 inches in height, and weighed about 165 pounds; he was 56 years old. Margaret was 5 feet 3 inches tall, and weighed about 112 pounds; she was 12 or 13 years of age. It seems the three were in good health. No evidence was introduced indicatory of the habits of Margaret, Helen and George, except there was evidence tending to show Margaret, who was active and athletic, had the practice of doing "setting up exercises" before retiring.
(Carbon monoxide has an affinity for hemoglobin two hundred to three hundred times that of oxygen. There is a striking variation in individual susceptibility, but no evident sex predisposition. Children are believed to be more susceptible than adults, probably because of their relatively greater respiratory exchange, body weight considered. Carbon Monoxide Poisoning, McConnell, p. 510, Cecil, Textbook of Medicine by American Authors, 6th Edition.)
Distinguished pathologists, expert witnesses for plaintiff, testified the absorption of carbon monoxide in the blood is directly proportional to the concentration of carbon monoxide in the immediate environment of the individual, and, by the use of a formula shown in the 1937 edition of a recognized medical textbook, an expert witness for plaintiff drew the conclusions that carbon-monoxide concentrations in the immediate environments of Margaret, George and Helen were .29%, .50%, and 1.12%, respectively. The plaintiff's expert witnesses were of the opinion that Margaret survived Helen and George. This opinion, as we understand it, was based upon the fact that Margaret had the smallest saturation of carbon monoxide in her blood, and upon the conclusions of the witnesses that Margaret had the smallest concentration of carbon monoxide in her immediate environment. So plaintiff's expert witnesses said they believed Margaret survived Helen and George because Margaret was breathing carbon monoxide in smaller quantity (then were Helen and George) and for a more prolonged period of time, during which time she progressed in and out of coma and into a complete state of helplessness from which she was unable to save herself and finally expired. In stating their opinions, these witnesses knew little about the three persons, Margaret, Helen and George. The experts did not know the relative weight of the three, their respective hemoglobin volume, rate of circulation, rate of respiration, or relative susceptibility to carbon-monoxide poisoning; nor did they know the source of the poisonous gas in its relation to the two rooms, or the humidity of the atmosphere in the two rooms, or the air's oxygen content. All of these variables, according to plaintiff's witnesses, were reflected in the different percentages of the poisonous saturation of the hemoglobin.
A physician, distinguished pathologist, expert witness for defendants, did not agree with the conclusions of plaintiff's expert witnesses. He said that the final answer to the question, "who died first," did not depend upon how much carbon monoxide was in the surrounding atmosphere, but upon how much air the respective individuals had breathed and their susceptibility to carbon-monoxide poisoning. He was of the opinion the concentration of carbon-monoxide gas in the air surrounding the individual could not be determined from a shown percentage of carbon-monoxide saturation of the hemoglobin. He was not acquainted with the formula contained in the 1937 edition of the medical textbook, mentioned supra, and noted the formula was not included in a later, 1945, edition of the same work. He said such a formula "is preposterous." He thought there was nothing particularly wrong with the statement that the absorption of carbon monoxide is to an extent proportional to the concentration of gas in the immediately surrounding air, because the more of the poisonous gas there is in the air the better chance one has to get carbon-monoxide poisoning; but he said there is no way of telling how fast a particular individual may get the poisoning because there are "so many intangibles that enter into it" — age, size of the individual, circulatory rate, rate of respiration, volume of hemoglobin, temperature, humidity, and other variables. These variables are reflected in the saturation of the blood; but, how long it took the particular person to get a particular saturation, the witness could not say. He thought the child, Margaret, with a 47% saturation probably died before the others with 60% and 77%; this, on the theory the stated percentages represented the respective "lethal doses" for the three. But the witness said there are so many intangibles there is no way of knowing, although he was of the opinion that the 47% saturation of carbon monoxide was a lethal dose for Margaret. The witness also expressed the view that, to be fatal, a saturation of 47% "would not have to be" over a prolonged period of time; and that one with 77% (or 60%) saturation need not have more carbon monoxide in the body than one with 47%, there "may be or there could even be less."
When experts, of great experience and distinction in their field, have so disagreed upon the significance of evidence of the shown differences in the percentages of the carbon-monoxide saturations of the hemoglobin, it would seem difficult for a court to decide a fact of survivorship upon such evidence alone. Having examined the testimony of the expert witnesses for the parties, we observe their opinions were formed and expressed upon the tacit assumption Margaret, Helen and George were exposed to carbon monoxide at the same time. Such an assumption cannot be made (nor can it be reasonably inferred the three were so exposed) from any evidence introduced.
Even though it had been shown Margaret, Helen and George retired at the same time and that poisonous gas permeated the atmosphere of the two rooms at the time, yet, if the child, Margaret, did setting-up exercises before retiring, her quickened rates of circulation and respiration and extended depth of inhalation could have the sooner caused her to absorb a "lethal dose," it would seem, although there may have been at the time a greater concentration of carbon monoxide in the room occupied by Helen and George than in the room occupied by Margaret. Now there was no evidence whether or not there was any poisonous gas in either room when the three retired. And the evidence does not show where Helen and George and Margaret severally were, or what they were doing, or when they went to their respective rooms, or when they respectively retired to the repose of their beds some fatal night in late October. The evidence merely shows the living three were last seen October 21st or 22d; and, as stated, their badly decomposed bodies were discovered the late afternoon or early evening of October 29th. Absent evidence of when the three were individually exposed to the poisonous gas, it would seem impossible to form any reasonable conclusion as to survivorship, even though the views of plaintiff's expert witnesses were accepted.
Examining the shown surrounding circumstances existing when the three bodies were discovered, we are unable to determine when the poisonous gas progressed into one or the other of the two bedrooms. We have seen there was an open hot-air pipe in the basement directly over the open vent of the defective water heater, and it is possible the hot lighter-than-air poisonous fumes from the water heater first went through the open hot-air pipe into the hot-air jacket of the furnace, thence through the hot-air pipe and to and through the open heat register into the room used by Helen and George, thence throughout the house including the room ordinarily used by Margaret; but we do not know whether the fire in the furnace was burning and heating the air in the air jacket, or whether it had become low or gone out so as to admit the fumes from the water heater into and through the open hot-air pipe. If heated air were passing from the furnace out through the open hot-air pipe into the basement, then it might be the fumes from the water heater could not have gone into and through the hot-air pipe, but might have been diffused in the basement so that the fumes could have risen and passed, first, through the small opening in the floor of Margaret's room, thence to again become diffused throughout the house including the room used by Helen and George. But whatever may be said about the probability of these alternative conjectures, yet no evidence discloses whether one or two of the individuals were within or without the house, or within or without a gas-diffused room or rooms in the house when another or the other individuals first became exposed to the poisonous gas.
The above observations manifest our belief there was no sufficient substantial evidence introduced upon which to base a conclusion of survivorship. We agree with the trial court's finding the "facts of the time of the deaths are not capable of being judicially ascertained."
The judgment should be affirmed.
It is so ordered.
LOZIER and ASCHEMEYER, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court.
All concur.