Schmitt v. Pierce, No. 47537

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM; PER CURIAM; PER CURIAM
Citation344 S.W.2d 120
PartiesRobbie SCHMITT, Mildred Lois Killion, and L. B. Buchanan, and George T. Killion, Administrator of the Estate of Lois Pierce, Deceased, Respondents, v. Robert O. PIERCE and Helen Hinchey, Administrator and Administratrix of the Estate of Otho Pierce, Deceased, Robert O. Pierce and Helen Hinchey, Appellants, Shirley Ann Pierce, a Minor, and L. G. Pinkley, Guardian of the Property of Shirley Ann Pierce, a Minor, Defendants. Robbie SCHMITT, Mildred Lois Killion, and L. B. Buchanan, and George T. Killion, Administrator of the Estate of Lois Pierce, Deceased, Respondents, v. Robert O. PIERCE and Helen Hinchey, Administrator and Administratrix of the Estate of Otho Pierce, Deceased, and Robert O. Pierce and Laura Pierce, his wife, and Helen Hinchey and Harold Lloyd Hinchey, her husband, Appellants, Shirley Ann Pierce, a Minor, and L. G. Pinkley, Guardian of the Property of Shirley Ann Pierce, a Minor, Defendants.
Decision Date13 February 1961
Docket NumberNo. 47537

Page 120

344 S.W.2d 120
Robbie SCHMITT, Mildred Lois Killion, and L. B. Buchanan,
and George T. Killion, Administrator of the Estate
of Lois Pierce, Deceased, Respondents,
v.
Robert O. PIERCE and Helen Hinchey, Administrator and
Administratrix of the Estate of Otho Pierce, Deceased,
Robert O. Pierce and Helen Hinchey, Appellants, Shirley Ann
Pierce, a Minor, and L. G. Pinkley, Guardian of the Property
of Shirley Ann Pierce, a Minor, Defendants.
Robbie SCHMITT, Mildred Lois Killion, and L. B. Buchanan,
and George T. Killion, Administrator of the Estate
of Lois Pierce, Deceased, Respondents,
v.
Robert O. PIERCE and Helen Hinchey, Administrator and
Administratrix of the Estate of Otho Pierce, Deceased, and
Robert O. Pierce and Laura Pierce, his wife, and Helen
Hinchey and Harold Lloyd Hinchey, her husband, Appellants,
Shirley Ann Pierce, a Minor, and L. G. Pinkley, Guardian of
the Property of Shirley Ann Pierce, a Minor, Defendants.
No. 47537.
Supreme Court of Missouri, En Banc.
Feb. 13, 1961.
Rehearing Denied March 13, 1961.

Page 122

McHaney & McHaney, Kennett, Ward & Reeves, Caruthersville, for appellants.

Roberts & Roberts, Farmington, for respondents.

BOHLING, Commissioner.

Otho Pierce and Lois Pierce, his wife, perished February 19, 1958, the result of an automobile collision. Each died intestate. The fact issues in the trial court were: Did one survive the other, or did they die simultaneously within the meaning of the Uniform Simultaneous Death Act, Chapter 471. (Statutory references are to RSMo 1949 and V.A.M.S.) Defendants make no point on appeal that there was sufficient evidence to establish that Mr. Pierce survived Mrs. Pierce. Mr. Pierce's real and personal property was valued at well over $250,000. The two also held title to real estate by the entirety. Robbie Schmitt, Mildred Lois Killion and L. B. Buchanan, children of Mrs. Pierce by her former husband; Robert O. Pierce and Helen Hinchey, children of Mr. Pierce by his former wife, and Shirley Ann Pierce, 15-year-old daughter of Mr. and Mrs. Pierce constituted all the heirs at law of either decedent. Mrs. Pierce's children and the administrator of her estate instituted two actions against the children of Mr. Pierce, Mr. Pierce's personal representatives, and Shirley Ann, who appeared by her guardian. No issue is presented respecting any pleading. One action was for a declaratory judgment to determine how the assets of the estates of Mr. Pierce and Mrs. Pierce should be distributed. The other action, in which Mr. Pierce's children's spouses were joined as defendants, was to quiet and determine the title to real estate held by Mr. and Mrs. Pierce, individually or as tenants by the entirety. The two actions were consolidated and tried to the court by consent of the parties. At the close of the evidence the trial court found that Mrs. Pierce survived Mr. Pierce, and adjudged that Mrs. Pierce's heirs had title to the property held by Mr. and Mrs. Pierce by the entirety and an undivided one-half interest in the separate estate of Mr. Pierce. The defendants, with the exception of Shirley Ann and her guardian, have appealed.

It is our duty to review jury waived cases 'upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' Sec. 510.310, subd. 4. We recognize that the court's finding is not binding on us; that the question is not merely whether the court's findings are supported by substantial evidence; and that we are to make our independent investigation and reach our own conclusions as to the weight of the evidence. Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289, 290; Wyler Watch Agency v. Hooker, Mo.App., 280 S.W.2d 849, 855[10, 11]. Where, however, there is irreconcilable conflict in the evidence on essential fact issues the admonition in Sec. 510.310, subd. 4, to give due deference to

Page 123

the opportunity of the trial court to judge the credibility of the witnesses and not set aside the judgment unless clearly erroneous is appropriate. Cases supra; Erickson v. Greub, Mo., 287 S.W.2d 873; Dunlap v. Hartman, Mo., 338 S.W.2d 10.

The Simultaneous Death Act, in Sec. 471.010, 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, as determined by a court of competent jurisdiction, the property of each person shall be disposed of as if he had survived * * *.'

And Sec. 471.030 of said Act provides: 'Where there is no sufficient evidence that * * * tenants by the entirety have died otherwise than simultaneously as determined by a court of competent jurisdiction, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. * * *'

Missouri courts are admonished by the Act 'to effectuate its general purpose to make uniform the law in those states which enact it.' Sec. 471.070.

Under the statutes quoted supra, the property of each commorient is to be disposed of as if he had survived where 'there is no sufficient evidence that the persons have died otherwise than simultaneously.' This creates no presumption; but by its terms it is applicable where there is 'no sufficient evidence' of survivorship. Missouri has had no presumption relating to survivorship. Stewart v. Russell, Mo., 277 S.W.2d 1011, 1013.

In Taylor v. Cawood, Mo., 211 S.W. 47, 50[1, 2], the evidence of survivorship was considered 'substantial.' See also Stewart v. Russell, Mo., supra . Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135, 141, states: "Substantial evidence is evidence from which the triers of the fact reasonably could find the issue in harmony therewith." In Warren v. Aetna Life Ins. Co., 202 Mo.App. 1, 213 S.W. 527, 530, survivorship was established 'according to a preponderance of the testimony and reasonable inferences to be drawn therefrom.' We are not unmindful of statements in State ex rel. Sterling v. Shain, 344 Mo. 891, 129 S.W.2d 1048, 1051[7, 10], and Terminal R. R. Ass'n of St. Louis v. Schmidt, 349 Mo. 890, 163 S.W.2d 772, 774, cases involving different factual situations and legal principles. Our early rulings on sufficient evidence of survivorship are in accord with rulings in other states under the Act. Sauers v. Stolz, 121 Colo. 456, 218 P.2d 741, 743, states (loc. cit. 742): '[T]he fact of survivorship requires no higher degree of proof than any other fact in the case.' See also Prudential Ins. Co. of America v. Spain, 339 Ill.App. 476, 90 N.E.2d 256, 259; White v. Taylor, 155 Tex. 392, 286 S.W.2d 925, 927; 16 Am.Jur. 34, Secs. 42, 43, and appendix; Annotation 20 A.L.R.2d 235; 25 C.J.S. Death Sec. 12, p. 1071.

Another contention of defendants, i. e., Mrs. Pierce was not a 'surviving spouse,' would bring this review to an early termination, plaintiffs conceding she was dead upon arrival at the hospital. The gist of defendants' argument, broadly stated, is that certain provisions of the New Probate Code condition certain rights of or allowances to a surviving spouse upon an exercise of the right or receipt of the allowance prior to the death of such surviving spouse. They cite Secs. 474.200 and 474.300; State ex rel. Baker v. Bird, 253 Mo. 569, 162 S.W. 119, 123; Borden v. World War II Service Compensation Board, 243 Iowa 892, 54 N.W.2d 496, 501[3, 4]. Defendants' position might well be given consideration by the lawmakers (consult Wigmore, Evidence, 3d Ed., Sec. 2532a, p. 487; Baldwin's Ohio R.C.2dEd., Sec. 2105.21); but the case before us is governed by the provisions of the Uniform Simultaneous Death Act and not by statutes relating to other subject matters.

The death of one a short time after the death of the other is sufficient for the

Page 124

survivor to act as a conduit of title to the heirs of the survivor. In re Di Bella's Estate, 199 Misc. 847, 100 N.Y.S.2d 763, 770, stating 'if the proof is sufficient, one second would be enought.' See, among others, Taylor v. Cawood, Mo., 21 S.W. loc. cit. 51; Warren v. Aetna Life Ins. Co., supra, 213 S.W. loc. cit. 530. The contention is overruled.

This case differs from most of the like cases we have read in that many persons arrived soon after the collision and there is much conflict in the testimony of the witnesses and some confusion. To detail and discuss all the contentions presented would unduly extend this opinion. We shall endeavor to keep it within reasonable limits. In this connection we do not burden the opinion with testimony of plaintiffs' and, in one or two instances, of defendants' witnesses which our study of this record shows is so overwhelmingly against the weight of the credible evidence as not to influence the result, although some testimony is included which is not considered in reaching our ultimate conclusion on the facts.

The collision occurred about 1:05 p. m., February 19, 1958, a cold day, about 10 miles south of Poplar Bluff on Highway 53. Mr. Pierce, driving, was northbound, with his wife on the front seat ahd her sister, Mrs. Hattie O. Burris, on the back seat. Mr. E. Ora Knoll was driving south. The cars were Oldsmobiles. Highway Patrolman Kenneth Link saw the collision, stating the cars hit in the center of the northbound lane, spun, and blocked the highway. He immediately radioed Poplar Bluff for an ambulance.

The collision was very heavy. The front of each car was pushed back. The metal dash of the Pierce car was bent about eight inches out of line and its windshield had a hole, about eighteen inches in circumference, on the passenger side. Mr. And Mrs. Pierce died in or soon after the collision and Mr. Knoll the following morning. Mrs. Burris was severely injured but talked to persons at the scene.

We outline the injuries received by Mr. and Mrs. Pierce.

Trooper Link testified there was...

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29 practice notes
  • State v. Smith, No. 51904
    • United States
    • Missouri Supreme Court
    • November 13, 1967
    ...received where the trier of the facts is as capable as the witness of drawing conclusions from the facts proved,' Schmitt v. Pierce, Mo., 344 S.W.2d 120, 128(6); and, in the case of obscene pictures, a juror 'is as capable of judging a publication as an alleged expert,' State v. Vollmar, su......
  • Rowley's Estate, In re
    • United States
    • California Court of Appeals
    • December 22, 1967
    ...368 S.W.2d 522, 524; In re Spatofora's Estate (1962) 35 Misc.2d 128, 129, 229 N.Y.S.2d 601--602; Schmitt v. Pierce (Mo.1961) 344 S.W.2d 120, 123; Prudential Ins. Company v. Somers (1957) 20 Conn.Sup. 351, 354--355, 135 A.2d 365, 367; In re Cruson's Estate (1950) 189 Or. 537, 561--562, 221 P......
  • Petition of Smith
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 5, 1972
    ...presumption is created by the statute, and it is applicable where there is 'no sufficient evidence' of survivorship. Schmitt v. Pierce, 344 S.W.2d 120, 123 (Mo.). Matter of Estate of DiBella, 199 Misc. 847, 851, 100 N.Y.S.2d 763, affd. 279 App.Div. 689. The words 'sufficient evidence' as us......
  • Com. v. Golston
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 26, 1977
    ...respiration, pulsation, etc." He cites a number of civil cases that have relied on that definition, the latest being Schmitt v. Pierce, 344 S.W.2d 120, 133 (Mo.1961) (simultaneous death). Accord, Estate of Schmidt, 261 Cal.App.2d 262, 273, 67 Cal.Rptr. 847 (1968). Cf. Ohashi v. Blanchard, 2......
  • Request a trial to view additional results
29 cases
  • State v. Smith, No. 51904
    • United States
    • Missouri Supreme Court
    • November 13, 1967
    ...received where the trier of the facts is as capable as the witness of drawing conclusions from the facts proved,' Schmitt v. Pierce, Mo., 344 S.W.2d 120, 128(6); and, in the case of obscene pictures, a juror 'is as capable of judging a publication as an alleged expert,' State v. Vollmar, su......
  • Rowley's Estate, In re
    • United States
    • California Court of Appeals
    • December 22, 1967
    ...368 S.W.2d 522, 524; In re Spatofora's Estate (1962) 35 Misc.2d 128, 129, 229 N.Y.S.2d 601--602; Schmitt v. Pierce (Mo.1961) 344 S.W.2d 120, 123; Prudential Ins. Company v. Somers (1957) 20 Conn.Sup. 351, 354--355, 135 A.2d 365, 367; In re Cruson's Estate (1950) 189 Or. 537, 561--562, 221 P......
  • Petition of Smith
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 5, 1972
    ...presumption is created by the statute, and it is applicable where there is 'no sufficient evidence' of survivorship. Schmitt v. Pierce, 344 S.W.2d 120, 123 (Mo.). Matter of Estate of DiBella, 199 Misc. 847, 851, 100 N.Y.S.2d 763, affd. 279 App.Div. 689. The words 'sufficient evidence' as us......
  • Com. v. Golston
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 26, 1977
    ...respiration, pulsation, etc." He cites a number of civil cases that have relied on that definition, the latest being Schmitt v. Pierce, 344 S.W.2d 120, 133 (Mo.1961) (simultaneous death). Accord, Estate of Schmidt, 261 Cal.App.2d 262, 273, 67 Cal.Rptr. 847 (1968). Cf. Ohashi v. Blanchard, 2......
  • Request a trial to view additional results

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