Thomas v. Anderson

MUSSELL, J.

This action to quiet title arose out of the circumstances attending the deaths of John F. Thomas and Rhomus C. Sturgeon, who, as joint tenants, owned the real and personal property herein involved. Both men died between the hours of 9 and 10 o’clock on the evening of September 2, 1947, and plaintiff appeals from the judgment in which it was decreed that Rhomus C. Sturgeon survived John F.

Thomas;

that upon his death his joint tenancy interest terminated and the title to the property vested in Rhomus C. Sturgeon.

The controversy involves the application of the provisions of section 296.2 of the Probate Code, which are as follows:

“Where there is no sufficient evidence that two joint tenants have died otherwise than simultaneously the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived.”

Plaintiff, contends (1) that the evidence is not sufficient to support the finding of the trial court that the two deaths in this instance did not occur simultaneously; and (2) that under section 296.2 of the Probate Code, deaths are simultaneous if they occur substantially or approximately at the same time.

Mr. Thomas and Mr. Sturgeon were elderly gentlemen with heart ailments and were living in a home owned by them in the city of Fresno, and on the evening of September 2d, at about 9 o’clock, they were observed sitting together on the front porch of their home. Shortly thereafter, Mrs. Sanders, who lived next door, heard Sturgeon, who was in the backyard, say “What is the matter, John, what is the matter.” She ran outside and Sturgeon asked her to call the doctor. She called Mr. and Mrs. Shattuck, who lived next door, and Mr. Shattuck ran over while Mrs. Sanders went inside to use the phone.

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Mr. Shattuck testified that when called by Mrs. Sanders, he went over to the house and saw Mr. Thomas lying on the ground on his back, face up; that Sturgeon was leaning over and had his head lowered to Mr. Thomas’ chest; that Sturgeon was feeling or handling Thomas’ wrist and that Sturgeon asked him to call a priest; that Shattuck turned Thomas over, got him in position and gave him artificial respiration for a few minutes until Thomas took about three or four gasping breaths; that they were “gasping breaths, like he was fighting to get air, that is the way I’d say, gasping, striving, he was fighting for air.” Mr. Shattuck further testified that he had been required to take first aid in the Army and also for the company for which he worked and was familiar with the locations of the pulse, both from the head and the wrist; that he was present and had taken pulses of people who had passed away; that he felt Thomas’ temple for a pulse and did not feel any; that at about the precise moment when he was feeling for a pulse, he heard a thump or falling sound in the house; that after he felt for the pulse at the temple, he felt for a pulse at the wrist; that he could not feel any pulse at the wrist at all and that Thomas started to turn and discolor very readily; that he put his face down to Thomas’ chest and to his mouth; that there was absolutely no breathing; that he then proceeded into the house and found Sturgeon lying with his head on the piano pedals; that Sturgeon was then breathing; that he proceeded to turn Sturgeon over on his back, straighten him out on the floor and give him artificial respiration; that he continued to give artificial respiration until he could no longer hear or see breathing; that he was still working over Sturgeon when the fire department ■ arrived and that Sturgeon appeared to be still alive; that he was breathing, his breaths were far apart, or were not natural but he was alive.