Colovos' Adm'R v. Gouvas

• Decision Date: 25 June 1937
• Citation: 269 Ky. 752
• Parties: Colovos' Adm'r et al. v. Gouvas et al.
• Court: United States State Supreme Court — District of Kentucky

269 Ky. 752

Colovos' Adm'r et al. v. Gouvas et al.

Court of Appeals of Kentucky.

Decided June 25, 1937.

1. Evidence. — The burden of proof in the entire action lies on the party who would be defeated if no evidence were produced on either side (Civil Code of Practice, secs. 525, 526).

2. Death. — Under the common law, there is no presumption of survivorship in common disaster, and party asserting survivorship has burden of proving it.

3. Death. — The rule that there is no presumption of survivorship in a common disaster is applicable where insured and beneficiary die in common disaster.

4. Death. — The common rule that there is no presumption of survivorship in common disaster, and that party asserting survivorship has burden of proving it, applies in Kentucky.

5. Death. — In suit to settle estates of husband, wife, and two daughters who were burned to death in automobile when it caught fire, court properly removed from jury question of survivorship, where only evidence was testimony of witnesses that during fire cry, which seemed to be that of a female, came from automobile, since presence or absence of cry from any particular person was not proof as to which person survived other or others.

6. Insurance. — Under life policies containing provisions that amount of policies should be paid to beneficiary on proof of prior death of insured and that if beneficiary should die before insured, interest should vest in insured, proceeds of policies were payable to administrator of insured's estate rather than to administrator of beneficiary's estate, where insured and beneficiary died in common disaster, since beneficiary had merely contingent right of expectancy.

7. Insurance. — Under endowment policy having indorsement that right to change beneficiary was not reserved, proceeds of policy were payable to administrator of insured's estate, rather than to administrator of beneficiary's estate, where insured and beneficiary died in common disaster, since beneficiary's vested interest was not indefeasible right which could not be defeated by happening of contingency.

8. Husband and Wife; Parent and Child. — The statutory liability of husband for "necessaries" furnished to wife and infant children includes funeral expenses of wife and children (Ky. Stats., sec. 2130).

9. Executors and Administrators. — Where husband, wife, and two infant daughters died in common disaster, expense of funerals of all was just claim against husband's estate, though estates of wife and daughters were sufficient to pay their own funeral expenses.

Appeal from Warren Circuit Court.

B.S. HUNTSMAN for appellants.

LAURENCE B. FINN and RODES & WILLOCK for appellees.

OPINION OF THE COURT BY MORRIS, COMMISSIONER.

Affirming.

On the night of August 8, 1935, A. Colovos, aged fifty-six, his wife forty-four, and their daughters, Mary and Dorothy, aged fifteen and ten, were returning from Chicago to their home in Bowling Green in an old model closed car. Mrs. Colovos it is believed was driving as was her custom, and the father and girls were on the back seat. It had been raining, the road was slightly slippery, and from marks it appeared that the car had gone to the extreme right side, the wheels over the shoulder, then a sudden turn to the left, turning completely over on its side, headed in the opposite direction from its former course. The four occupants, the entire Colovos family, were burned to death in the car. No witness saw the machine turn over or catch fire. The accident occurred near midnight.

Mr. Colovos left surviving him several brothers and sisters some living in Bowling Green, others in Athens, Greece. Mrs. Colovos (sometimes called Frazella, and sometimes Carmella) was survived by her mother, Mrs. Charbonneau, who lives in Bowling Green.

The Bowling Green Trust Company, as administrator of each of the four estates, filed a petition asking that they be settled. The brothers and sisters of Colovos and the mother of Mrs. Colovos were named as defendants. It was alleged that Colovos, his wife and two daughters had met death in a common disaster, all dying intestate; that Mr. Colovos died possessed of some real estate and personal property, including as claimed, proceeds of various insurance policies. The wife had one insurance policy, and some personal effects. The children each held small insurance policies.

Mrs. Charbonneau, mother of Mrs. Colovos was the first to answer, alleging that she, being the sole heir of Mrs. Colovos was entitled to receive all of her estate, and a moiety of the estates of the children. She stated that she had agreed that the family all died in a common calamity, and suggested that there had been an agreement looking to an equitable distribution of the estates. Later, she filed an amended answer raising an issue. The administrator by amended petition admitted that at the outset there was pending an agreement for adjustment, but that a later conference resulted in a misunderstanding, and no settlement could be reached. It averred that there existed between the parties an actual controversy which should be determined before attempted settlement of the estates. The representatives of the estate of Mrs. Colovos and her two daughters were realigned as defendants. It was alleged that since the whole family perished at the same time in a common disaster, the proceeds of five policies on the life of Colovos belong to his estate, to be distributed under the laws of descent, to his heirs at law. The questions to be determined relate to the distribution of the proceeds of these policies and payment of funeral expenses of the mother and daughters.

The administrator of the estate of the mother and daughters denied the assertion in the petition that it was impossible to ascertain the order of deaths of the members of the family, "on the contrary they aver that A. Colovos predeceased Frazella Colovos," thus claiming by reason of survivorship that the proceeds of Colovos' several policies should be paid to the wife's administrator, and administered accordingly. Mrs. Charbonneau took the position that Colovos and the two daughters predeceased the wife and mother, and that as the sole heir she is entitled to the proceeds of the several policies in which the wife was namd as beneficiary. The issue of survivorship was thus raised.

The trust company as administrator of the mother and daughters respectively, moved the court to transfer the cause from the equity to the ordinary docket for the purpose of hearing proof on the question of survivorship. The court sustained the motion, and ruling that the burden of proof rested upon those asserting survivorship, impaneled a jury. After hearing proof the court, over the objection of the others, sustained the motion of the Colovos estate and his heirs to so do, and instructed the jury to say, which it did by a verdict, that it was impossible to determine which one of the four persons survived the others. The case then went back to the equity docket, carrying with it by agreement all the proceedings had while it stood on the ordinary docket. The court then rendered judgment holding that all the family had died in a common calamity, at the same time, and the burden being on the propounders of survivorship, since they had failed to establish the prior death of the father and husband, the administrator of Colovos estate was entitled to hold and distribute to his heirs the proceeds of the five policies in accordance with our laws of descent and distribution.

The first contention urged by appellant is that the court improperly placed the burden of proof on those who were asserting Colovos' prior death. In treating this question, we shall discuss it from the standpoint of the issues. Civil Code of Practice, secs. 525, 526, provide that the party holding the affirmative of an issue must produce evidence to establish it. The burden in the entire action lies upon the party who would be defeated if no evidence were produced on either side. Under the Roman law, presumption was indulged as to the order of death where persons were victims of a common disaster. Under the common law there is no such presumption. The presumption does not prevail in England, nor in the great majority of the states which adhere to the common law. Two notable exceptions wherein the civil law presumption as to the order of death arising from differences in sex, age or physical condition, where deaths occur in common disaster is recognized, are California and Louisiana. In all jurisdictions save those noted:

"The law * * * treats the case as one to be established by evidence, and lays the burden of proof on him who claims survivorship; and, if there is no proof as an ascertainable fact, which, not being established by him who has the burden, results in his failure to meet a condition precedent to his success. * * * In the absence of evidence from which the contrary may be inferred, all may be considered to have perished at the same moment; not because that fact is presumed, but because from failure to prove the contrary by those asserting it." 8 R.C.L. 716, 717.

"In few jurisdictions, by statute, survivorship is presumed as between persons who have perished in a common calamity, from the probabilities resulting from strength, age and sex, according to specified rules. But, the general rule is that where several persons perish in a common disaster, notwithstanding differences of age, sex and physical strength, there is no presumption as to survivorship, but it is a fact to be proven by the party asserting it." 17 C.J. 1179.

In jurisdictions where the majority rule prevails it is held that "such rule is applicable where the insured and beneficiary die in a common disaster, so that as between the claimants of the proceeds of life insurance policies * * * if there is not proof of actual survivorship the claimants on whom the law casts the burden of proving survivorship, must fail in his claim." Cyc. of Ins....