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In Re Estate of Moran

OPINION FILED DECEMBER 26, 1978.

IN RE ESTATE OF BERTHA MORAN, DECEASED. — (WAYNETTE SCHNEBERGER, ADM'R OF THE ESTATE OF RONALD W. MORAN, DECEASED, PETITIONER-APPELLEE,

v.

OWEN A. MORAN, ADM'R OF THE ESTATE OF BERTHA J. MORAN, ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT C. SPRINGSGUTH, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

On November 12, 1975, Bertha J. Moran ("Bertha") and Ronald W. Moran ("Ronald") were found dead from carbon monoxide poisoning in a car parked in their garage in Riverside, Illinois. On December 18, 1975, the circuit court of Cook County entered an order finding that at her death Bertha left three heirs at law, sons Owen and Roger and daughter Jane Moran Traeger.

Following a bench trial on a petition to amend the table of heirship to include the deceased son Ronald, the trial court found that Ronald had survived Bertha and accordingly granted the petition. *fn1 This appeal seeks the reinstatement of the December 18, 1975, table of heirship or a new trial.

The crucial issue raised on appeal is whether under the provisions of the simultaneous death act (Ill. Rev. Stat. 1975, ch. 3, par. 41a), there was "sufficient evidence" to prove that Bertha died before Ronald. Other issues concern rulings by the trial court on numerous evidentiary matters.

The petitioner called four witnesses: Riverside Police Sergeant George Metsch, the first person to arrive at the death scene; Dr. Henry Swiontek, the decedents' family physician for three years immediately preceding their deaths; and Drs. Robert J. Stein and Isadore Pilot, pathologists retained to express their opinions as to "who died first."

Sergeant Metsch testified that upon arriving at the garage at approximately 4 p.m., he saw smoke or fumes curling upward from underneath the overhead garage door, observed that the area in front of this door was blackened by carbon stains, and noted that all of the entrances to the garage were closed and locked. Although Metsch initially testified that he had not smelled the fumes until the garage window had been pried open, he later stated that he had smelled the fumes upon his approach to the garage.

When the Fire Department's Emergency Medical Technician Team ("EMTs") arrived, one of the members of the team attempted to enter the garage through the window but was forced back by the heavy fumes. A second EMT successfully entered but returned coughing and gasping. Later, another EMT re-entered the garage, turned the engine off, and opened the overhead garage door.

Sergeant Metsch testified that he found Ronald slumped in the driver's seat and Bertha slumped toward him in the adjacent passenger seat approximately 1 1/2 to 2 feet apart. He further testified that the exposed portions of their bodies were tinged reddish (characteristic of carbon monoxide poisoning) and that neither exhibited any sign of life.

Dr. Swiontek testified that he had treated Ronald for various ailments including respiratory infections on eight occasions during the period of June 1972 to November 1974. Ronald's chest X ray taken in June 1972 showed clear lung fields and no pathology. Dr. Swiontek last treated Ronald in November 1974, at which time he was suffering from a respiratory infection and weighed approximately 180 to 190 pounds.

Dr. Swiontek first treated Bertha in November 1972 for a "small stroke" or "vasospasm" for which he prescribed a vasodilator to increase the circulation to her brain. Dr. Swiontek stated that Bertha had suffered no residual neurological deficit as a result of this stroke, and that she had responded favorably to his treatment. He next attended Bertha in September 1973 when she was hospitalized for hip surgery which left her confined to a wheelchair. Chest X rays taken at this time showed normal lung fields but some calcification or sclerosis of her aorta. In November 1973, Dr. Swiontek treated Bertha for anemia which he testified persisted but which he refused to conclude was permanent. Dr. Swiontek last examined Bertha the day before her death at which time her blood pressure and heart sounds were normal as they had been on each of her biweekly visits since 1972.

Based on the foregoing testimony and Bertha's and Ronald's ages of 79 and 41 respectively, Dr. Stein concluded that Bertha had predeceased Ronald. However, Dr. Stein acknowledged that he had neither examined the decedents during their lifetimes nor performed autopsies on them at their deaths. Therefore, he necessarily stated that his opinion was based on his experience that "in most cases" a 79-year-old woman would have vascular changes diminishing the circulation of oxygen to her vital organs, and "going on averages" a 40-year-old male would have minimal vascular changes. Dr. Stein also stated that many other factors, including respiratory disease, might cause an individual to inhale more carbon monoxide during a shorter period of time than a person breathing without a respiratory impediment.

Dr. Pilot testified that he was currently a board certified pathologist who had been licensed to practice medicine in 1917, had taught pathology for 40 years, and had practiced and consulted in pathology and internal medicine throughout his medical career. During the course of his practice, Dr. Pilot had observed over 100 carbon monoxide poisoning patients. In response to the same hypothetical question as posed to Dr. Stein, Dr. Pilot also concluded that Bertha had predeceased Ronald.

The respondents called two witnesses: Riverside Fire Chief Anthony Bednarz, an EMT present at the death scene, and Dr. Charles Petty, a forensic pathologist. Other than estimating Bertha's and Ronald's weights to be 160 and 220-230 pounds respectively, Officer Bednarz's testimony merely corroborated that of Officer Metsch.

Dr. Petty testified that in the absence of such determinative factors as the air currents in the garage at the time in question, the nature and extent of the decedents' activities immediately preceding their deaths, and the decedents' quantity and rate of carbon monoxide intake, one could not determine with a reasonable degree of medical or scientific certainty whether either had survived the other. Although Dr. Petty acknowledged that individuals having severe and advance arteriosclerotic heart disease might succumb at lower levels of carbon monoxide than those without such a disease, he also stated ...


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