Rowley's Estate, In re

• Citation: 65 Cal.Rptr. 139,257 Cal.App.2d 324
• Court: California Court of Appeals
• Decision Date: 22 December 1967
• Parties: In re ESTATE of Anna May ROWLEY, Deceased. Jessie NORTON and Minnie Zvolanek, Proponents and Appellants, v. Mary Lu BUNNELL, Executrix of the Estate of Eulah May Cooper, Deceased, Contestant and Respondent. Civ. 24328.

Page 139

65 Cal.Rptr. 139

257 Cal.App.2d 324

In re ESTATE of Anna May ROWLEY, Deceased.

Jessie NORTON and Minnie Zvolanek, Proponents and Appellants, v. Mary Lu BUNNELL, Executrix of the Estate of Eulah May Cooper, Deceased, Contestant and Respondent.

Civ. 24328.

Court of Appeal, First District, Division 1, California.

Dec. 22, 1967.

Hearing Denied Feb. 14, 1968.

Young, Wooldbridge, Paulden & Self, William L. Caraway, Bakersfield, for appellants.

Robert H. Johnson, Johnson, Harmon & Johnson, San Francisco, for respondent.

SIMS, Associate Justice.

Following an automobile collision, the lifeless bodies of Anna May Rowley and Eulah May Cooper were found in the vehicle in which they had been traveling. The executrix of Mrs. Rowley's will filed a petition, pursuant to the provisions of section 296.41 of the Probate Code, seeking to have it determined that they died under circumstances where there was no sufficient evidence that they died otherwise than simultaneously. Respondent Mary Lu Bunnell, as executrix of the estate of Miss Cooper, to whom Mrs. Rowley had bequeathed $15,000 and her automobile, filed an answer in which she alleged that Miss Cooper survived Mrs. Rowley. Appellants Jessie Norton and Minnie Zvolanek, the residuary legatees of Mrs. Rowley's estate, filed their answer alleging that the two women died simultaneously and that there was no sufficient evidence to the contrary. The petitioner disclaimed any interest in the outcome of the issue raised by the answers and was excused from further participation. Following trial the court rendered its written decision that there was sufficient evidence that Mrs. Rowley's death preceded Miss Cooper's 'by an interval of time' and that Miss Cooper survived her benefactress. Findings of fact and conclusions of law, and an order (Prob.Code, § 296.42) determining that Miss Cooper survived and that her estate was entitled to the property bequeathed to her were accordingly prepared, signed and entered.

The residuary legatees have appealed from the decision as well as from the decree. ¹ They contend that the evidence is insufficient to establish that Miss Cooper survived Mrs. Rowley, or, in the words of the statute, 'there is no sufficient evidence that they died otherwise than simultaneously.' In support of this contention they urged that the inferences upon which respondent and the trial court relied can only be supported by conjecture, surmise and guesswork, and that it was error to receive the opinion of a medical doctor regarding principles of physics and dynamics. An examination of the record fails to demonstrate as a matter of law that the trial court was without evidentiary support for its conclusion that respondent had established, by a preponderance of the evidence, that it was reasonably probable that Mrs. Rowley died first. The order must be affirmed.

The Facts

On November 16, 1965, at approximately 1:30 p.m., Eulah May Cooper, companion to Anna May Rowley, was driving Mrs. Rowley's late model Cadillac north on Highway 101 in San Benito County. Mrs. Rowley, who could not drive, was sitting in the right front seat. The accident occurred on that part of the four lane divided road upon which the northbound lanes curve easterly, or to the right, in a broad sweeping curve. There was a moderate amount of rain at the time of the accident. The investigating officer testified that the broken speedometer of the Cadillac indicated Miss Cooper was driving at 75 miles per hour. ² In his opinion, the Cadillac did not go straight across the divider into the southbound lanes, but went out of control a little bit back in the curve, then went into a broadside skid and entered the southbound lanes going northerly at about a 90 degree angle to the lanes. He felt that the absence of skid marks was due to the fact that the car hydroplaned on the water on the pavement.

The right side of the skidding Cadillac collided with the front of a Falcon, which was being driven southerly at about 70 miles per hour, in basically a straight-on broadside accident. Gouge marks on the pavement indicated that some portions of the involved cars moved northwesterly 21 to 25 feet from a point two feet inside the easterly edge of the southbound lanes, to a point one foot easterly of the lines dividing the two southbound lanes. The impact was such that the Falcon, which was pushed backward, was approximately a 'third of the way inside the Cadillac' when the cars came to rest.

A highway patrolman arrived at the scene some two minutes after the accident. Several persons had gathered prior to his arrival, but there is no evidence they witnessed the collision. Neither of the victims ever showed the slightest sign of life.

Mrs. Rowley was crushed between the right front door, which had been pushed in by the Falcon, and the dashboard of the Cadillac. Before her body could be removed from the car, the Falcon had to be pulled away by a tow truck, and the Cadillac's door had to be pried off by a wrecker. Her body was found crushed, and with the torso twisted so that the visible upper portion was facing the rear of the car. A dog, which was apparently either on her lap, or close to her, was crushed to the point that its remains could not readily be distinguished from hers. The ambulance owner testified that it was his impression that 'all that was holding her together was her clothes. We had to handle her very carefully.' The deputy coroner of San Benito County, a physician, concurred in this judgment, indicating that her 'body * * * was just torn up to the point where there is nothing but skin holding her together, disemboweled, chest torn open.' It was impossible for him to even test for rigor mortis because of the condition of the body. The highway patrolman testified that it was his opinion that Mrs. Rowley was dead when he first saw her.

The deputy coroner who performed the actual post-mortem examination was of the opinion that Mrs. Rowley died instantly and could not have taken a single breath or moved a muscle. The coroner, a physician, and a third physician with a background of handling accident cases, called as an expert medical witness by respondent, also concluded that she died instantly. Appellants' medical witness testified that on the basis of the injuries reported in the death certificate and post-mortem record, Mrs. Rowley possibly could have lived for a brief interval after suffering the reported injuries, but on cross-examination he acknowledged that he thought that when she received the injuries she had died instantly.

Eulah May Cooper was found behind the steering wheel, leaning back, with her head to her left, against the supporting doorpost between the front and back seats. The back of her head was fractured with brain tissue protruding, her ribs were broken, indicating possible sideways crushing of her chest, and her right arm and leg were broken.

Although the highway patrolman, as previously stated, was of the opinion Mrs. Rowley was dead when he first observed her, he did not know whether Miss Cooper was dead. There was no problem in removing Miss Cooper's body from the automobile in contrast to the problems in removing Mrs. Rowley's body, and Miss Cooper was removed first. The deputy coroner was unable to determine, as he had with Mrs. Rowley, that Miss Cooper died instantly. The coroner stated that she could have possibly taken a breath or two but that life could not have been sustained very long in her body. He subsequently acknowledged that he arrived at the conclusion Miss Cooper died at the second the blow struck her. The respondent's expert testified it was medically possible that Miss Cooper could utter a sound or take a breath after impact, but he, too, observed that it was logical to say that the enormous force transmitted to her was sufficient to cause immediate death when it hit her. Appellants' medical witness testified that the injuries suffered by Miss Cooper would cause her to die instantly when the blow was received. ³

An analysis of the entire testimony of each physician reveals a unanimity of opinion that each victim died immediately upon receiving the injuries disclosed by the post-mortem reports. Inquiry concerning the sequence of death produced the following opinions:

The deputy coroner, who performed the autopsy, testified that it would be a matter of 'conjection (sic)' as to the exact instant when death occurred as between the death of Miss Cooper and Mrs. Rowley.

The coroner, when limited to a medical opinion, stated that on the basis of the relative injuries, 'the destruction of Mrs. Rowley's body would indicate possibly she expired first.' He acknowledged that the death certificates he signed each gave the hour of death a 'about 1:30 p.m.,' and that a column in the death certificates reading 'Approximate interval between onset (of cause of death) and death' had been left blank in each instance. He also acknowledged that on December 12, 1965 he wrote appellants' attorney, 'The impact was so great that the women were literally torn to pieces. Their extremities and brains were scattered about the interior of her car. Death to both of them was without a shadow of doubt, absolutely instantaneous.' The coroner complained to the court, that he had used his knowledge of physics and was not being permitted to testify on the point. He was subsequently recalled to the stand to explain a letter he had written to one of the attorneys for respondent dated January 17, 1966. In the letter he had stated: 'With regard to determining which of the women died first, the report of the Highway Patrol would show you the manner in which the cars collided and further details. Miss Cooper's Cadillac skidded across three lanes and the center strip with the right side of the car sliding forward. It was struck amidships on the right by the oncoming Falcon. You can see from this that the Falcon hit the door immediately inside of which Mrs. Rowley was...