Schifanelli v. Wallace

• Decision Date: 28 February 1974
• Docket Number: No. 159,159
• Citation: 315 A.2d 513,271 Md. 177
• Parties: Thomas M. SCHIFANELLI, Personal Representative of the Estate of Marie E. Wallace, et al. v. Frank Wesley WALLACE.
• Court: Maryland Court of Appeals

Page 177

271 Md. 177

315 A.2d 513

Thomas M. SCHIFANELLI, Personal Representative of the Estate of Marie E. Wallace, et al. v. Frank Wesley WALLACE.

No. 159.

Court of Appeals of Maryland.

Feb. 28, 1974.

Thomas M. Schifanelli, Annapolis, for appellants.

Warren B. Duckett, Jr., Annapolis (Turk, Manis & Duckett, Annapolis, on the brief), for appellee.

Argued before MURPHY, C. J., and BARNES, ^* SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ.

LEVINE, Judge.

This appeal arises out of a dispute over the proceeds of a life insurance policy issued upon the life of Marie E. Wallace (Marie), now deceased, in which appellee, Frank W. Wallace (Frank), her surviving husband, was the named beneficiary. Following Marie's death from a gunshot wound inflicted by Frank, a declaratory judgment suit was filed in equity by appellant, Thomas M. Schifanelli, personal representative of Marie's estate, and on behalf of her two minor children by prior marriages. In this suit, appellants sought a declaration requiring that the policy proceeds be paid to the estate, and not to Frank. The chancellor (Sachse, J.) disagreed, and passed a declaratory decree in which he held that they were to be paid to the named beneficiary. We affirm.

Rather extensive testimony was presented by an array of witnesses, consisting mainly of relatives, friends and acquaintances of the Wallaces, coupled with officers from the state police. Interestingly enough, despite the bevy of witnesses and the wide range of their testimony, there are remarkably few discrepancies.

On October 26, 1970, Marie and Frank were married and thereafter lived in Gambrills; she was then 36, and he was some ten years younger. This was apparently her third marriage, her second marriage to Robert L. Faulkner (Faulkner) having been entered into one June 2, 1963. That marriage was terminated on April 3, 1970, by a divorce on the ground of adultery in which John B. Bealefeld (Bealefeld) was named as Marie's paramour. She and Bealefeld had been seeing each other since June 1960, and continued to do so with some regularity until she started dating Frank in December 1969. She saw him with less frequency from that point, especially after she and Frank began living together in March 1970. Although there was no evidence that Bealefeld saw or dated Marie after her marriage to Frank in October 1970, he did meet her for a drink on two or three occasions during the period of her courtship with Frank-between December 1969 and the marriage.

A number of the witnesses, including some produced by appellants, testified that they had never seen Frank exhibit a violent temper, even after he had been drinking. The sole reference to any intemperate behavior on his part came from Bealefeld who stated: 'One time (prior to the marriage), he said he'd shoot me if he ever caught me messing around with Marie Faulkner, at the time.' (emphasis added). Frank was otherwise described variously as a 'gentleman' and 'a very nice quiet natured person.'

Those witnesses who were acquainted with the relationship between Frank and Marie were united and uncontradicted in describing it as a happy one. They testified that although Marie had been romantically involved with Bealefeld during the latter stages of her marriage to Faulkner and for a brief period immediately following the divorce, once she began a serious romance with Frank, there was no question of her loyalty to him. The witnesses described the Wallaces' relationship in the most glowing terms: 'Marie did love Frank'; 'I thought they were very happy'; 'they acted like the ideal couple'; 'they were quite close and loving'; 'they seemed like two people in love'; and 'they were a very happy couple.'

On the morning of March 4, 1971, the date of Marie's death, Frank finished working his shift at a nearby plant at 8:30 a. m. From there he went to the home of a friend and co-worker, Ronald J. Monroe (Monroe), to see another friend off to South Carolina. After that friend departed, Frank and Monroe went to a neighborhood bar where over the span of some two hours or more, Frank consumed three or four bottles of beer and ate a cheeseburger and some chili. His conduct seemed quite normal and sober during the entire period, and was the same when they departed about 12:30 p. m. Before leaving, Monroe purchased a 'six-pack' from which he gave Frank one can to take home.

It had snowed that morning-to a depth of approximately one inch-but Monroe described Frank who was driving as 'very capable of handling himself.' He drove to Monroe's home-a distance of some two miles-dropped him off, and headed for his own home. By this time, snow flurries had resumed, but during the remainder of the trip, he experienced no difficulty driving because of the beer or the weather conditions.

When Frank arrived home, he found Marie ironing clothes. He stated he was in a good frame of mind-that being Thursday morning-because he was not scheduled to work until Monday morning. Shortly after he opened the can of beer which had been given to him by Monroe-and while he was talking to Marie-he received a phone call from an officer of a local bank, who advised him that their joint application for a loan to purchase a new home had been approved. Especially happy at hearing this news, Frank and Marie resumed their conversation.

Ultimately, Marie, who was to report for work at 4:00 p. m., went to the bedroom to dress. While she remained seated on the bed, Frank arose and pulled from a holster hanging on the dresser his handgun for the purpose of describing its operation to Marie. It was a fully loaded .44 caliber magnum revolver, described by one expert witness as 'the most powerful of all hand guns.' He returned with it to the bed and began showing it to her. He testified that by describing its operation, he meant that he was showing Marie '(h)ow to cock the gun . . . how to return it to the safety, things of that nature.'

Testimony by a firearms expert from the state police established that Frank's gun, being a single-action revolver, is not fired by merely pulling the trigger. It is also necessary to bring the hammer back manually; then the trigger must be pulled to release the hammer. To place the hammer in a safety position, it is necessary to remove the finger from the trigger after it is released from the 'sear,' but before the hammer falls into the safety notch; if the hammer is allowed to fall before the finger is removed from the trigger, the gun discharges. The same expert stated that Frank's gun was in normal operating condition and therefore would also fire under those conditions; in fact, that is precisely what occurred while he was exhibiting the gun to Marie. '(His) thumb slipped off the hammer (before he removed his finger from the trigger) and the gun went off.' As a consequence, the shell entered Marie's abdomen and she screamed. Frank then 'threw the gun down,' telephoned for an ambulance, and also called Marie's sister.

A thorough investigation conducted by the state police immediately after the incident was reported to them, revealed no evidence of a physical struggle. The police investigation also included the performance of a 'breathalyzer' test on Frank. Strangely enough, although records pertaining to that test were produced-including the result of .15-no effort was made to interpret or explain this evidence. Frank denied intentionally shooting his wife, and also denied that he was angry at her or jealous of anyone else. In addition to testifying that he loved Marie very much, he also was permitted to draw a diagram of the bedroom. Virtually his entire testimony regarding the events of that day-including his feelings towards Marie- was admitted over appellants' vigorous objections.

Following Marie's death, Frank was promptly indicted for manslaughter. ¹ The criminal case came on for trial before Judge James L. Wray, sitting without a jury, in the Circuit Court for Anne Arundel County. He found Frank guilty of manslaughter, but following a pre-sentence investigation, struck the verdict of guilty and placed Frank on probation without verdict. ²

At the conclusion of the trial of this case, the chancellor held the matter sub curia, and then filed a thoroughly considered opinion followed by a decree in which he declared that Frank '. . . is entitled to the proceeds of the policy insuring the life of Marie . . ..' After a detailed review of the evidence, Judge Sachse found that the shooting was unintentional. Nevertheless, because of the alcoholic consumption factor and Frank's handling of the lethal and fully loaded gun under the circumstances described in the evidence, he also found him guilty of gross negligence. Since the killing was not intentional, however, the chancellor held that Frank, as the named beneficiary, was not precluded from collecting the policy proceeds.

Two questions are presented for our consideration by this appeal:

(1) Whether, in light of Code (1957, 1971 Repl.Vol.) Art. 35, § 3, the 'Dead Man's Statute,' the testimony by the surviving husband of what transpired before the shooting, including his statements of how he felt toward his wife, how the gun was fired, his denials that he intentionally shot her, and the diagram of the bedroom, was properly admissible.

(2) Whether the chancellor erred in ruling that because the killing was unintentional, the named beneficiary was entitled to recover the policy proceeds even though her death was the product of gross negligence.

(1)

The question of the admissibility of Frank's testimony is governed by the 'Dead Man's Statute,' Section 3 of Art. 35, which provides in relevant part:

'In actions or proceedings by or against executors, administrators, heirs, devisees, legatees or distributees of a decedent as such, in which judgments or decrees may be rendered for or against them, and in proceedings by or against persons incompetent to testify by reason of mental disability, no party to the cause shall...