Sporrer v. Ady

• Decision Date: 10 February 1926
• Docket Number: 68. [a1]
• Citation: 132 A. 376,150 Md. 60
• Parties: SPORRER v. ADY.
• Court: Maryland Court of Appeals

132 A. 376

150 Md. 60

SPORRER v. ADY.

No. 68. ^[a1]

Court of Appeals of Maryland

February 10, 1926

Appeal from Circuit Court of Baltimore City; Charles F. Stein Judge.

Interpleader by the Ph nix Mutual Life Insurance Company, in which Matthew Sporrer, administrator of the estate of Frederick M. Sporrer deceased, was made plaintiff, and M. Cassandra Ady administratrix of the estate of Lyda Ady Sporrer, deceased was made defendant. Decree for defendant, and plaintiff appeals. Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, and WALSH, JJ.

Benjamin L. Freeny, of Baltimore, for appellant.

Edward J. Colgan, Jr., of Baltimore (James J. Lindsay, Jr., of Baltimore, on the brief), for appellee.

DIGGES J.

The single question to be decided upon this appeal is, Did Lyda Ady Sporrer survive her husband Frederick M. Sporrer? If she did, the decree appealed from should be affirmed; if she did not, it should be reversed. The situation which makes a decision of this question necessary was produced by the following proven and conceded facts: That in the year 1922 the Ph nix Mutual Life Insurance Company issued a policy upon the life of Frederick M. Sporrer in the sum of $10,000, which policy was in full force at the time of the death of Frederick M. Sporrer; that by the terms of the policy Lyda Ady Sporrer, the wife of the insured, was made the beneficiary, provided she survived the said Frederick M. Sporrer, and it was stipulated in said policy that, if she did not survive her said husband, the proceeds of the policy should be payable to the estate of the said Frederick M. Sporrer; that on November 25, 1923, at about 7 o'clock p. m., Frederick M. Sporrer and Lyda Ady Sporrer were thrown from an automobile in which they, together with their six year old son, Mrs. Sporrer's sister, M. Cassandra Ady, her brother, Benjamin W. Ady, his wife, and infant child were riding; that from injuries sustained at the time of this accident both Mr. and Mrs Sporrer died; that, after the accident, Mrs. Sporrer was placed in a Ford automobile, and taken to the Johns Hopkins Hospital, while her husband was taken to St. Joseph's Hospital in a Chevrolet; that according to the hospital records both Mr. and Mrs. Sporrer reached the respective hospitals at the same time, 7:30 p. m., and that both were found dead upon arrival; that the accident happened after dark at about 7 p. m. at a point on the Har ford road near the village of Carney, from one-quarter to one-half mile from the Joppa road; that St. Joseph's Hospital is from 7 to 9 city blocks nearer to the scene of the accident than Johns Hopkins Hospital.

The appellant, Matthew Sporrer, duly qualified as administrator of his deceased son, Frederick M. Sporrer, and the appellee, M. Cassandra Ady, qualified as administratrix of her deceased sister, Lyda Ady Sporrer. The appellant and appellee each claiming the proceeds of the insurance policy, the insurance company filed in the circuit court for Baltimore city its bill of interpleader, whereupon the court passed a decree requiring parties to interplead, and ordered that Matthew Sporrer, administrator, should be plaintiff, and M. Cassandra Ady, administratrix, should be defendant. After taking testimony in open court, and argument the learned chancellor, by decree dated March 5, 1925, adjudged and ordered that M. Cassandra Ady, administratrix of Lyda A. Sporrer, is entitled to receive the proceeds of the policy of insurance. From that decree this appeal is prosecuted.

Chapter 108 of the Acts of 1920, now codified as section 71 of article 35, provides:

"If several persons respectively entitled to inherit from one another should, after the passage of this act, perish in the same calamity such as a wreck, collision, battle, conflagration, flood, earthquake, storm or accident, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, survivorship shall be presumed from the probabilities resulting from the strength, age and difference of sexes, according to the following rules: * * *

E. If those who have perished together were above the age of fifteen years, and under the age of sixty years, and the sexes be different, the male shall be presumed to have survived."

The husband and wife, who perished as a result of the same accident, were both between the ages of 15 and 60 years; Mr. Sporrer being 43, and his wife, 36 years of age. Does the statute above quoted apply to a case of this character? We think not. Prior to the enactment of this legislation there was no presumption of survivorship, and it was incumbent upon the party alleging to establish it. Cowman v. Rogers, 21 A. 64, 73 Md. 405, 10 L. R. A. 550. In that case there was no means of determining which of the parties survived, and no circumstances from which it could be inferred. The case grew out of the death of husband and wife as a result of the Johnstown flood, and the only fact proven relative to the issue of survivorship was that, when the flood waters submerged and destroyed their home, the husband and wife were together in the living room on the first floor of the house, and were never again seen. It is apparent that any decision as to which one survived the other could be based only upon speculation and conjecture.

The case of McComas v. Wiley, 108 A. 196, 134 Md. 572, decided June 24, 1919, before the passage of the act, arose by reason of the accidental death of Mr. and Mrs. Charles L. Wiley. An automobile in which they and other persons were riding was struck by an express train, causing injuries to Mr. and Mrs. Wiley, from which they both died, either instantaneously or in a very short time. There were a number of witnesses who testified that Mrs. Wiley was alive for as long as 15 minutes after the accident, while others, including expert medical witnesses, testified that her death was instantaneous. As in Cowman v. Rogers, supra, this court, speaking through Judge Urner, held:

"In such a situation, it is necessary that a claim which is dependent upon the occurrence of the deaths in a particular order shall be supported by satisfactory proof of the sequence of events thus relied upon, and in the absence of such evidence there is no certain basis upon which the asserted right can be sustained."

From the evidence, although conflicting, this court found the fact that Mrs. Wiley survived her husband. The act of 1920 was passed shortly after this decision. The question, therefore, is, Does the statute apply to cases where there is positive testimony, though opposite and conflicting, or is it only applicable in that class of cases where there is a total absence of testimony as to the fact of which one died first? The presumptions expressed in the statute do not arise, as seen by its language, unless "it is not shown who died first, and there are no particular circumstances from which it can be inferred."

The present case presents an issue as to a single fact, to wit: Did Mrs. Sporrer outlive her husband? More than 25 witnesses were sworn and gave admissible and pertinent testimony in support of the contentions of the plaintiff or the defendant on the issue. It cast upon the learned judge the duty of determining the fact from the evidence, and in no way differs from all cases where the existence of a fact is disputed, and the evidence thereof is conflicting and contradictory. We are of the opinion that section 71 of article 35 is limited in its application to that class of cases in which there is no evidence as to who died first, and no particular circumstances from which survivorship could be inferred, of which class Cowman v. Rogers is an illustration, and does not apply to the present case.

A careful study of the record establishes certain facts, clearly and beyond dispute; viz., that about seven minutes after the accident Mrs. Sporrer was placed in a Ford touring car and sent to Johns Hopkins Hospital; that she was alive at the time she was placed in the car; that, when the Ford car reached the Joppa road, from one-fourth to one-half mile from the scene of the accident, Mrs. Sporrer was seen leaning sidewise out of the car by the appellant's witness Clarence E. Everett, who was riding on the running board of the car; that witness pushed her back in the car, and, as he did so, she seemed to take a long breath, and fell back across the seat, and was not seen to move again; that it sounded to witness "as if there was a weight came on top of her and forced the breath out of her body;" that at that time witness called to the driver of the car, and said, "This lady in black here is gone"; that Mrs. Sporrer was dead when she arrived at the hospital, which was at 7:30 p. m. according to the hospital records.

From the above it is positive that Mrs. Sporrer died between the time she was put in the Ford car and the time the car reached the hospital; and the great probability is that she died at the time when the car reached Joppa road, as described by the witness Everett. The evidence further discloses that the husband, Frederick M. Sporrer, was not removed from the scene of the accident until some time after his wife, the time varying, according to the appellant's witnesses, from 10 to 30 minutes, and, according to the appellee's witnesses, from 3 to 6 minutes. The longest time testified by any of the witnesses between the time Mrs. Sporrer was taken away and the time her husband was taken away was 30 minutes and, while this does not seem probable when all of the evidence on this point is considered, it is, nevertheless, reasonably certain that this interval was at least 5 minutes, as no witness testifies positively that it was less than 5 minutes, and the probability is that it was from 10 to 15 minutes. There...