Watkins v. Home Life & Accident Ins. Co.

• Decision Date: 20 January 1919
• Docket Number: (No. 71.)
• Citation: 208 S.W. 587
• Parties: WATKINS v. HOME LIFE & ACCIDENT INS. CO. et al.
• Court: Arkansas Supreme Court

208 S.W. 587

WATKINS v. HOME LIFE & ACCIDENT INS. CO. et al.

(No. 71.)

Supreme Court of Arkansas.

January 20, 1919.

Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor.

Bill of interpleader by the Home Life & Accident Insurance Company and another, in which H. L. Watkins, administrator of the estate of W. R. Fischer, deceased, and another, filed answers. From decree rendered, Watkins appeals. Affirmed.

This was a bill of interpleader filed in the chancery court by the Home Life & Accident Insurance Company, in which it stated that there were rival claimants to the proceeds of a policy of insurance, and that it did not know to which of them it should make payment. It offered to pay the proceeds of the policy into the registry of the court, and asked that the claimants be made parties to the suit to the end that their contest might be settled. Each claimant filed an answer claiming the proceeds of the policy. The material facts are as follows:

The Home Life & Accident Insurance Company is an old line insurance company doing business in the state of Arkansas, and on the 13th day of February, 1917, it issued a policy of life insurance to W. R. Fischer in the sum of $5,000, and J. E. Fischer, his son, was named in the policy as the beneficiary. On the evening of the 8th day of January, 1918, during the life of the policy, W. R. Fischer and J.E. Fischer were both shot from ambush in Montgomery county, Ark., and instantly killed. Their bodies were found lying in the road the next morning riddled with buckshot and rifle balls. The bodies were found about 9 o'clock in the morning of January 9, 1918, and were lying in a mudhole, with ice frozen around the bodies.

A witness testified that he heard a volley of gunshots at about 6:30 on the evening of January 8, 1918, and in a few seconds he heard another volley of 18 or 20 shots. He was in his house, and the shooting occurred in the vicinity of where the bodies were found.

Another witness testified that late in the evening before they were shot, he saw W. R. and J. E. Fischer riding in a buggy toward the place where they were found dead the next morning; that he saw them between sundown and dark, and they were about three miles from where they were found dead. There was nothing to indicate which one died first.

The policy contained the following:

"Any designated beneficiary may be changed by the insured during the continuance of this policy, by filing with the company a written request therefor, accompanied by this policy, such change to take effect upon the indorsement of the same on the policy by the company, whereupon all interest of the former beneficiary shall cease; provided that no such change of beneficiary shall be had if the policy or any interest therein be assigned at the time of such change. If any beneficiary shall die before the insured the interest of such beneficiary shall vest in the insured."

The administrator of the estates respectively of W. R. Fischer, deceased, and J. E. Fischer, deceased each filed an answer claiming the proceeds of the policy. The chancellor made a general finding in favor of the administrator of the estate of J. E. Fischer, deceased, and it was decreed that the proceeds of the policy be paid to him as such administrator. The administrator of the estate of W. R. Fischer, deceased, has appealed to this court.

C. E. Johnson, of Delight, and S. S. Langley, of Murfreesboro, for appellant.

Otis Gilleylen, of Glenwood, and Carmichael & Brooks, of Little Rock, for appellees.

HART, J. (after stating the facts as above).

The evidence shows that W. R. Fischer and J. E. Fischer were riding together in a buggy late in the evening on the 8th of January, 1918, and were shot from ambush and instantly killed. Their bodies were found the next morning lying in the frozen ground, and numerous charges of buckshot appeared to have been fired into their bodies. There is nothing whatever in the proof to indicate which one died first. It is well settled at common law that when two or more persons perish in the same disaster, and there is no fact or circumstance tending to prove which survived the other, there is no presumption whatever on the subject. The law treats the case as one to be established by evidence, and, in the absence of proof tending to show which one died first, all will be considered to have perished at the same moment, not because that fact is presumed, but because from failure to prove it the actual survivorship is unascertainable, and property rights must be settled as if death occurred to all at the same time. 8 R. C. L. p. 716; Young Women's Christian Home v. French, 187 U. S. 401, 23 Sup. Ct. 184, 47 L. Ed. 233; Greenleaf on Evidence (16th Ed.) vol. 1, § 30, p. 126; Lawson's Law of Presumptive Evidence, p. 298; United States Casualty Co. v. Kacer, 169 Mo. 301, 69 S. W. 370, 58 L. R. A. 436, 92 Am. St. Rep. 641; Re Maria H. Wilbor et al., 20 R. I. 126, 37 Atl. 634, 51 L. R. A. 863, and note, 78 Am. St. Rep. 842 and St. John v. Andrews Institute for Girls et al., 191 N. Y. 254, 83 N. E. 981, 14 Ann. Cas. 708.

The rule that there is no presumption of...