78 Pa. Super. 417 | Pa. Super. Ct. | 1922
Opinion by
Morgan Sweeney and his daughter Mrs. Kelly died in a common disaster. The question for decision arises in the distribution of Morgan Sweeney’s property which has been awarded to his next of kin pursuant to the intestate law. Appellant claims the property as next of kin of Mrs. Kelly. As there is no presumption of survivorship, the burden of proof is on appellant to show that Mrs. Kelly survived and so became entitled to the property on the death of Morgan Sweeney. She has not furnished the measure of proof necessary to take property from A and transfer it to B. At most it may be said the evidence casts doubt upon the title by descent in Morgan Sweeney’s next of kin, but that is not sufficient to divert the statutory devolution from one line to another ; the sufficiency of the evidence is the single question before us.
The record shows that father and daughter and three others died by inhaling illuminating gas at some undetermined time between 12:30 a. m. and 10:05 a. m., January 19,1920. They occupied a three-story house on the northeast corner of Seventh Street and Allegheny Avenue in this city. The gas entered the cellar from a broken gas main in the street. A witness described the street as “practically all ashes” and said “the gas percolated through the cinders and entered through the side walls,” “through large crevices in the foundation walls from the Seventh Street side.” The first floor front room apparently occupied the whole Allegheny Avenue width of the house ahd was used by John Kelly as a real estate office. Immediately north of this room and communicating with it, was their dining room. North of the dining room was a hall affording entrance to the house from Seventh Street. North of the hall was a kitchen; to pass from the kitchen to the dining room required crossing this hall. From the hall a stairway led to the second floor.
The third floor front room was the bedroom of Morgan Sweeney. The room north of it was said to be the bedroom of Francis Kelly, (son of John Kelly by a former marriage). A door led from Morgan Sweeney’s room to Francis Kelly’s room. The rear third story room was occupied by Catharine McGonigle and was entered by a door from the hall.
The record seems to show that the entrance to the cellar was by a door opening under the stairway in the first floor hall. A window in Mrs. Kelly’s second story bedroom was raised four or five inches; all the other windows in the house were closed. There is no evidence that any doors in the house were open except the door from the bathroom into the second story hall, the door from the hall into Catharine McGonigle’s room on the third floor and perhaps the door between Morgan Sweeney’s and Francis felly’s room on the third floor. A Welsbach gas light was burning on the second floor hall and one gas light in the real estate office on the first floor and one in the third floor hall.
At 10:05 the house was opened and entered by the police and a physician and the occupants were pronounced dead by the physician. Mrs. Kelly was attired in her night dress, wearing bedroom slippers, and was lying on the floor partly in the bathroom and partly in the hall on the second floor. Morgan Sweeney and Catharine McGonigle were in their respective beds. John Kelly, dressed in his night clothes, lay on the floor of the room occupied by Morgan Sweeney; it was not clear where he
Heat flues led from the heater in the cellar to all these bedrooms except to Catharine McGonigle’s room, which had no heat flue in it. The evidence does not show whether the registers of any of these heat flues were open or closed; there is nothing to show how they were constructed or in what condition they were. There were transoms over the doors and sufficient space under them for carpets, but the evidence does not show whether the transoms were open or shut, or whether the carpets filled the spaces under the doors. There were no heat flues in the halls. There is no evidence indicating whether the first floor was constructed tight enough to prevent gas collecting in the cellar from escaping through cracks into the first floor, or under or about the door opening into the cellar. There is no evidence showing how the heater was constructed and the heat flues attached, so that we cannot tell whether the air from the cellar went into these heat flues or whether there were cold air ducts by which the air would have been supplied from the outside and not from the cellar. The only witness who testified on this subject was a man who occupied the house afterwards and he said he did not know anything about the heater.
The door to Catharine McGonigle’s room was open. When the physician stated that the parties were dead, one of the police officers instructed his subordinate as follows: “You know the orders of the department; take the first body he pronounced dead to the hospital”; accordingly the body of Mrs. Kelly was taken to a hospital, where it was again stated that she was dead. There was evidence that about 10:30 a relative of Morgan Sween
The police officer who first entered the house did so by forcing the kitchen door and said “the fumes of gas were overpowering,” that the “gas was overpowering in the whole house.” One officer immediately “got into the dining room and kitchen and went to the side door on Seventh Street” while another opened the windows as they went through the house. A witness testified that death takes place sooner when such gas is inhaled in large quantities than if the same amount is taken in small quantities, though in any event some time is required; that the “process requires some minutes, if not hours, of continuous inhalation of gas.”
Appellant’s theory is that the gas, being lighter than air, rose from the cellar through the heat flues into the house, first filling the third floor and then the lower stories, thereby first overcoming the occupants of the
To establish the position of the learned counsel for appellant, it is necessary to assume the existence of a number of facts of which there is no proof, or to speculate by inferences from inferences in a manner prohibited by law (see cases cited in Mr. Justice Simpson’s dissenting opinion, Gilmore v. Alexander, 268 Pa. 415, 425). When one asserts a title to property he must prove his title. We have already described the plan of the house as indicated by the record, and have suggested matters essential to support the hypothesis upon which appellant relies but as to which there is no evidence. Gas that has percolated through cinders in the bed of a street and crevices in the cellar wall would enter the house from the cellar at every crack or joint that was not absolutely tight. A policeman who entered when the house was opened was asked “Did the gas come up through the heat flues?” and answered “I don’t know.” Though the door from the first floor into the cellar was closed there is no evidence that the gas did not enter the house under or about the door. It may have. It does not appear whether there was a heat flue in the kitchen and yet when the officer entered he found the gas overpowering there. How and when did it get there? We do not have the evidence of the physician who entered with the police officers, as he died before the hearing.
The court in banc sustained exceptions to the adjudication, considering in detail the positions taken by the
“As to Sweeney’s room on the third floor being the warmest room in the house, we do not think there is sufficient evidence to find this as a fact. The only witness examined on the subject was Beirne, who now lives in the premises in question. He testifies that the heat from this heater runs even throughout the house. He does not testify of his own knowledge that, during Sweeney’s life,
“As to Sweeney’s prior physical condition as indicating lesser power of resistance than Mrs. Kelly, the testimony offered tended to show that Sweeney had consulted Dr. Spiess for medical attention, and as Dr. Spiess was dead at the time of the audit, his widow produced a card from his records indicating that Sweeney had called on Dr. Spiess for medical attention beginning February 19, 1917, and ending April, 1919, fourteen visits in all. Assuming, for the sake of argument, that this card was admissible in evidence (which may be doubted) we do not think it is entitled to much weight, for the reason that the last visit of Sweeney to the doctor was eight months prior to his being found dead, and it is uncertain and doubtful whether Sweeney’s cessation of visits to the doctor were because he had been cured of his then ailment, or because one or both thought that Dr. Spiess could not further benefit him, or because Sweeney wished to avoid further expense. Five visits, from September 15 to 28, 1918, were for a heart affec
The rule of the common law is “that where two or more persons perish in the same disaster, and there is no fact or circumstance to prove which survived, there is no presumption whatever on the subject. None arises from considerations of age or sex, and the law will no more presume that all died at the same instant than it will presume that one survived the other. It treats the case as one to be established by evidence, and lays the burden of proof on him who claims survivorship...... In the absence of evidence from which the contrary may be inferred, all may be considered to have perished at the same moment; not because that fact is presumed, but because, from failure to prove the contrary by those asserting it, property rights must necessarily be settled on that theory. If there are other circumstances shown, tending to prove survivorship, courts will then look at the whole case for the purpose of determining the question, but if only the fact of death by a common disaster appears they will not undertake to solve it on account of the nature of the question, and its inherent uncertainty. It is not impossible for two persons to die at the same time, and when exposed to the same peril under like circumstances it is not as a question of probability very unlikely to happen”: 8 R. C. L., p. 716; see also 17 Corpus Juris, 1179, and 4 Wigmore on Evidence, section 2532, and authorities cited in notes 1 and 2.
As the parties to this appeal have no dispute about the legal rule, differing only about its application to the facts shown in the record, nothing can be gained by adding a discussion of the decisions cited to an opinion already perhaps too long. It is certain that the parties received the gas in different situations. It is not known whether they received it at the same time or in the same quantity. It is not known how the gas got from the cellar into the house. As there was no flue in Catharine McGonigle’s room the gas could perhaps only enter that
Where a husband and wife' died by inhaling illuminating gas in circumstances held not to justify the inference that the wife survived the husband, the court said: “The situation suggests that the parties did not receive the gas in the same situation. Whether the husband was more exposed on the lounge permits discussion, but it is indicated that he exhibited evidences of life and consciousness of danger and effort to escape that are absent in the case of the wife. Whether such phenomena suggest that the husband tried to dress before his wife died is speculative, and yet an act of the living on his part is found, while none appears that concern the wife. So it may be argued that the gas did not act upon him while they were in a state of equal passivity, for one succumbed without, and the other with, a struggle to resist and to escape. The indication may be of slight value, but that is true of all data pertaining to the event. It touches too closely the realm of speculation to permit any certainty in decision. It is said the wife’s body was warm and pliable, and the husband’s was not, a condition consistent with her flesh and covering, and his exposure and anaemic condition. Dr. Hart felt competent to state that the husband was first to die, while Dr. Noble asserted that the ascertainment was beyond anybody’s knowledge. The surrogate was unable to de
The decree is affirmed, costs to be paid out of the estate.