Prudential Ins. Co. of America v. Spain, Gen. No. 49019

• Decision Date: 19 January 1950
• Docket Number: Gen. No. 49019
• Citation: 90 N.E.2d 256,339 Ill.App. 476
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. SPAIN et al.
• Court: United States Appellate Court of Illinois

Page 256

90 N.E.2d 256

339 Ill.App. 476

PRUDENTIAL INS. CO. OF AMERICA v. SPAIN et al.

Gen. No. 49019.

Appellate Court of Illinois, Fourth District.

Jan. 19, 1950.

Wilmer L. Vogt, Belleville, for appellant.

John J. Driscoll, East St. Louis, for appellees.

CULBERTSON, Justice.

This is an appeal by Arvel Spain, administrator of estate of Roy W. Spain, deceased, from Orders of the Circuit Court of St. Clair County, Illinois, by which Orders Elizabeth Gibbs, administratrix of the estate of Marie Spain, deceased, and Illinois State Trust Company, a corporation, administrator of estate of Marie Spain, deceased, were found to be entitled to the proceeds of four life insurance policies issued by The Prudential Insurance Company of America. Two of these policies were upon the life of Roy W. Spain, and the other two were upon the life of his wife, Marie Spain. The wife was named as beneficiary of the husband's policies, and the husband was named as beneficiary of the wife's policies. After the deaths of Roy W. Spain and Marie Spain, The Prudential Insurance Company of America, the plaintiff herein, filed an interpleader suit making the administrators of the respective estates of Roy W. Spain and Marie Spain, parties defendant thereto, and after the issues were made up by the pleadings in said interpleader suit the cause came on for hearing before the Court, without the intervention of a jury, and after a hearing in said cause the Court by his order and finding declared the proceeds of said four insurance policies to be the property of Elizabeth Gibbs, administratrix of the estate of Marie Spain, deceased, and shortly after making said finding the Illinois State Trust Company, a corporation, having been appointed administrator of the estate of Marie Spain, deceased (the former administratrix having resigned), the Court by its subsequent order found the new administrator of the estate of Marie Spain, deceased, entitled to the proceeds of said four policies.

The factual situation giving rise to this litigation discloses that Roy W. Spain and Marie Spain met their deaths on the early morning of March 15, 1948 when a car driven by Roy W. Spain, in which his wife, Marie Spain, was riding with him as a passenger, struck an Alton & Southern Railroad freight train in St. Clair County, Illinois, just beyond the city limits of the City of East St. Louis. The appellant herein contends that this is a case that falls within the provisions of Section 192.1, Paragraph 41a, Chapter 3, 1949 Illinois Revised Statutes, which provides, 'Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this Article.' Said appellant further contends that insurance policies being involved the law as set forth in Chapter 3, 1949 Illinois Revised Statutes, Section 192.4, Paragraph 41d, is applicable, viz.: 'Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously the proceeds of the policies shall be distributed as if the insured had survived the beneficiary.'

The evidence offered in behalf of the estate of Marie Spain to establish survivorship consists of the testimony of three witnesses, all members of the train crew of the train which was struck by the automobile driven by the husband of Marie Spain. An examination of that evidence discloses that Malcolm Purcell, a switchman on the train, testified that after he noticed that something back to the automobile he took hold of the train and went back from the caboose in which he was riding, to the automobile, a distance of approximately 100 to 200 feet. This witness testified that when he got back to the automobile he took old of the left wrist of Roy W. Spain and could not feel a pulsebeat and that he could not hear Roy W. Spain breathing or mking any other noise, and from those circumstances he formed the opinion that Roy W. Spain was dead. This witness further testified that at the time he was examining Roy W. Spain he heard Marie Spain groan, and from that fact he formed an opinion that she was then still alive. It would appear that several minutes intervened between the time of the actual impact between the train and the car driven by Roy W. Spain, and the time the witness Purcell examined the body of Roy W. Spain.

Ernest Jennings, a switchman on the train, when called to testify, stated he walked from the engine of the train where he was riding at the time the train stopped, some thirty-seven car-lengths to the rear of the train, a distance of approximately 500 feet, and while walking along the train he examined the cars, and that he walked the distance from the caboose to the automobile, and that the total length of time from the time he left the...