29 P.2d 275 | Cal. Ct. App. | 1934
Husband and wife having died at approximately the same time, a controversy as to disposition of insurance moneys was determined in favor of the estate of the latter, from which judgment an appeal was perfected, the sole question involving the sufficiency of the evidence.
[1] It appeared that both of the spouses were discovered in their home, each having expired as a result of gunshot wounds. The autopsy surgeon testified that Edwin H. Clarke had received a bullet in the back of the head, and that Kendace H. Clarke, his wife, had been shot in the front and posterior parts of the head and had received wounds and lacerations by some other instrument. In each instance he attributed the cause of demise to gunshot wound, and swore that "a person shot the way these people were would drop down on the floor and expire, but they would not have to do that immediately; . . . they might breathe for a minute or so". An officer who was first to arrive at the scene testified: "I observed that Clarke's body was colder than that of Mrs. Kendace H. Clarke."
Section 1963 of the Code of Civil Procedure provides that when two persons perish in the same calamity and there are no particular circumstances from which it can be inferred, survivorship is presumed from the probabilities resulting from strength, age and sex, and that if both be over fifteen and under sixty years of age and the sexes are different, the male is presumed to have survived. Such particular circumstances have been held to mean those from which a rational conclusion may be drawn as distinguished from probability. (Estate of Wallace,
The judgment is affirmed.
Stephens, P.J., and Archbald, J., pro tem., concurred.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 29, 1934.