Daniels v. Bush, 37834

• Decision Date: 19 February 1951
• Docket Number: No. 37834,37834
• Citation: Daniels v. Bush, 211 Miss. 1, 50 So.2d 563 (Miss. 1951)
• Parties: DANIELS et al. v. BUSH et al.
• Court: Mississippi Supreme Court

Page 563

50 So.2d 563

211 Miss. 1

DANIELS et al. v.BUSH et al.

No. 37834.

Supreme Court of Mississippi, Division A.

Feb. 19, 1951.

Quitman Ross, Laurel, for appellants.

Homer W. Pittman, Hattiesburg, Carroll Gartin, Laurel, for appellees.

LEE, Justice.

Thomas B. Bush and wife, Mrs. Pearl Bush, lost their lives in an automobile wreck on January 28, 1948.This suit was instituted by Mrs. Ira Daniels and others, the children of Mrs. Bush by a former marriage, against Ella B. Bush, the only child of the marriage of Mr. and Mrs. Bush, and Raymond C. Bush and others, the children of Thomas B. Bush by a former marriage.As complainants, they alleged that Mrs. Pearl Bush survived Thomas B. Bush, and that they were entitled to share in the one-fifth interest in his estate, which descended to her.From the decree, denying relief and dismissing their bill, they have appealed.

The sole question here involved is one of survivorship.

The day was cold.Ice was on the roads and bridges.Just as Mr. and Mrs. Bush, in their car, had passed over Big Creek bridge, the car turned sharply to the right and ran off of the road into a bar pit, which was about four feet deep in water.Persons nearby went promptly to the scene of the accident.The car had turned over and the wheels were upside.Mr. Bush was in the water 'flat on his back, face up, floating towards the bank'.Two white men and a negro pulled him out of the water, and one of the white men began giving him artificial respiration.

Two of the first three witnesses, who arrived at the scene, testified for the appellants that they saw no evidence of life in Mr. Bush, though they did not express a positive opinion that he was dead.The tracks on the bridge veered nearly to the bannister on the left, and thence back to the right; but the car struck neither bannister.There was nothing to evidence the application of the brakes.Both Mr. and Mrs. Bush had suffered from heart trouble.He was afflicted with what is known as 'ox' heart.His physician had advised him against driving a car.But such advice was not followed.No autopsies were performed, though the death certificates in each instance, gave drowning as the cause of death.The length of time to cause death from drowning, according to medical evidence, is variable, depending somewhat on the physical condition and stamina of the victim.The body of Mrs. Bush was not recovered until thirty or forty minutes after the wreck, when the car was pulled out of the water.It was found in the back seat.Neither the doors nor the windows were shown to have been open at that time.Of course, Mrs. Bush's body was then lifeless.

From this evidence, succinctly the appellants maintain this theory: Mr. Bush had an 'ox', or greatly enlarged, heart.He was not physically capable of driving a car.The veering of the tracks and the non-application of brakes indicated that he suffered a heart attack as he was crossing the bridge.He must have been dead a minute or two after the car ran into the bar pit, because he was floating on the water when the first persons arrived.If he had drowned, his body would have sunk beneath the water.According to medical evidence, it would have taken several minutes, in the course of nature, for Mrs. Bush's lungs to fill with water.Under the circumstances, she must have lived longer than Mr. Bush and was, therefore, his survivor.

Conceding to this theory all probable weight, the fact remains that Mrs. Bush also had been suffering from a heart ailment.While Mr. Bush was advised not to drive a car, he, in fact, ignored such advice, and drove the car practically wherever he went.The failure of the car to strike either bannister, on an icy bridge, could just as well be attributed to control on the part of the driver.The non-application of the brakes on a bridge in that condition could likewise indicate good judgment on the part of the driver.If Mr. Bush was dead when the car ran into the bar pit, the question arises as to how he got out of the car and into the water.It was not shown either that the windows were down or that the doors were open.Evidently he fell out, was thrown out, or got out.Speculation is an unsafe guide in making the selection.But, if he opened the door and got out, most assuredly he was not dead at that time.There is no basis for a valid adjudication as to the time when Mrs. Bush's breath left her.It must be remembered that she was a heart sufferer too.Who knows the terrific shock which she underwent?And the physical condition of the victim has much to do with the length of time required for drowning.Thus there is no escape from the conclusion that the time of her death is pure conjecture.

No presumption of survivorship exists in our state.We follow the common law.The doctrine is 'where two or more persons perish in the same disaster and there is no fact or circumstance to prove which survived,...