Darby v. Schoolcraft

Pfaff, J.

This action was brought for partition of certain real estate, one tract of which was owned by Robert Dillender, deceased, and two tracts owned by Robert Dillender and Margaret Dillender, both deceased, as tenants by the entirety. The appellants are the heirs-at-law of Margaret Dillender; the appellees are the heirs-at-law of Robert Dillender.

Cause was tried upon the issues formed by the complaint for partition, appellants’ cross complaint for partition, amended answer and the reply and answer thereto. The issue was whether the appellants were the owners of any interest in the real estate described in the complaint for partition, devolution of title to which depended upon whether Robert Dillender survived Margaret Dillender or vice versa, or whether they died simultaneously.

Cause was submitted to the court without the intervention of a jury whereupon the court entered judgment in favor of the appellee, Constance Schoolcraft, on her complaint for partition; that the said real estate was owned by the appellees as the sole surviving heirs-at-law of Robert Dillender, deceased, and that the appellants had no interest in said real estate as to the sole surviving heirs-at-law of Margaret Dillender, deceased.

The court ordered all of the real estate sold by a commissioner and the proceeds of sale divided equally among the appellees.

The errors relied upon by the appellants for reversal is that the court erred in overruling the motion for new trial.

While the motion sets out three grounds, appellants rely only upon the first two.

(1) That the decision of the court is not sustained by sufficient evidence;

(2) That the decision of the court is contrary to law.

The sole question for this court to determine in deciding the correctness of the decision of the trial court is whether or not there is evidence of probative value that Mrs. Dillender died prior to Mr. Dillender.

The evidence of the coroner as to the cause and time of death of parties is set out in brief and is as follows:

“I am E. C. Holmes, and on August 9, 1952 I was coroner of Morgan County. I am a funeral director and a licensed embalmer in State of Indiana, and have been licensed since 1928. In my official capacity as coroner, I was called to the home of Robert Dillender, deceased, on the evening of August 9, 1952, and I arrived there at about 8:00 or 8:30. Mr. Dillender resided in the Southeast part of Martinsville, and I had no previous acquaintance with him. I was accompanied by Officer Lingle and the deputy sheriff, and when we arrived we went into the Dillender home and found the body of Robert Dillender lying on the living room floor, and he was dead. Upon examination, I found a gunshot wound in his chest. I was later directed to the body of his wife, Margaret Dillender, lying in some bushes on the south side of the second house down the street, about 100 to 120 feet from the Dillender home, and she was dead from a gunshot wound in her abdomen. Upon inspection of the Dillender home, we found a 32-20 revolver that was jammed and some empty shell cases for it on the back porch, a 32 caliber slug and empty shell in the kitchen, and a 32 caliber automatic in the living room about a foot from Mr. Dillender’s feet. There was some blood in the bedroom and on the bed and more blood on the living room floor. The bodies were removed and I caused autopsies to be performed by Dr. Leon Gray the next day. The autopsies showed Mr. Dillender had a 32-20 caliber gunshot wound in his chest which followed his ribs on left side and landed below left scapula, and Mrs. Dillender had wound on left side of body just below ribs and another on the right side just above ilac crest, both wounds being caused by same 32-20 caliber bullet. Mr. Dillender also had another wound that pierced his heart and left lung, this wound being fatal, but in my opinion, his first wound wasn’t. Mrs. Dillender’s wound would, in my opinion, be a fatal wound, having pierced the inner or vena cava, a large vein, and there was considerable blood in her abdomen, and blood in his thorax around the lungs. My finding as coroner was that she died of gunshot wound inflicted by Robert Dillender, and that he died of gunshot wound inflicted by himself. I have had some experience dealing with the human body, before and after death, and made some study of human anatomy and eifects of various acts upon the body, and I have been coroner for four years. In my opinion, the movements made by Mrs. Dillender after wounded would shorten her life because increased heart action would cause more loss of blood. I cannot give an opinion as to whether Mr. Dillender or Mrs. Dillender died first. If as much as five minutes elapsed between the shootings, it would be possible for Mr. Dillender to survive.

“E. C. Holmes: Cross-examination.

“From the nature of the wounds, in my opinion, Mr. and Mrs. Dillender would have lived about same length of time after being shot. Mr. Dillender’s heart was pierced and he would not live long. He moved from bedroom to living room after being shot. Mrs. Dillender died from bleeding, since there were no vital organs pierced. I am not qualified to say whether the piercing of Mr. Dillender’s heart would stop the heart action. The fact that Mrs. Dillender moved the distance of 120 feet indicates she did not have an immediately fatal wound and lose control of her faculties, and from the facts I have I could not tell how long she lived. It would be possible for a person wounded like Mrs. Dillender to live quite some time.

“E. C. Holmes: Re-Direct Examination.

, “From the way Mrs. Dillender was laying, she probably slumped from exhaustion and died shortly after.”

This was all of the evidence on the subject.

It is well settled that a decision or finding must be based upon the proven facts and cannot be based upon mere guess, .conjecture, surmise, possibility or speculation. Smith, Executrix v. Strock, Executor (1945), 115 Ind. App. 518, 60 N. E. 2d 157, and cases cited.

Evidence sufficient to sustain a judgment must be substantial evidence with probative value. Pennsylvania R. Co. v. Rizzo (1949), 119 Ind. App. 505, 86 N. E. 2d 91, and cases cited therein.

Judge Royse, speaking for this court in Vonville v. Dexter (1948), 118 Ind. App. 187, p. 208, said:

“By probative value we mean evidence ‘carrying quality of proof and having fitness to induce conviction.’ Carter v. Commonwealth (1932), 245 Ky. 257, 53 S. W. 2d 521.”

In our opinion, the evidence set out above is not such as would convince reasonable minds that Robert Dillender' survived his wife. The evidence is clearly speculatory, and, therefore, cannot sustain the judgment herein.

We believe that §6-251, Burns’ 1953 Replacement, as follows:

“Simultaneous death—Survivorship—Evidence— Descent of property.—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, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this act.”

is applicable to the facts as • disclosed by this record.

Judgment reversed with instructions to sustain appellants’ motion for'new trial.

Kendall, J.—Dissents with opinion in which Kelley, C. J., concurs.