In re the Estate of Hughes

735 S.W.2d 787, 1987 Mo. App. LEXIS 4627
CourtMissouri Court of Appeals
DecidedSeptember 4, 1987
DocketNo. 14868
StatusPublished
Cited by4 cases

This text of 735 S.W.2d 787 (In re the Estate of Hughes) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Estate of Hughes, 735 S.W.2d 787, 1987 Mo. App. LEXIS 4627 (Mo. Ct. App. 1987).

Opinion

HOGAN, Judge.

Cecil A. Hughes shot and killed his wife, Suzanne DuPerier Hughes, and then committed suicide. Probate estates were opened for both Cecil and Suzanne and administration on both estates was commenced in the Probate Division of the Circuit Court of Greene County. By stipulation and motion, the probate division was called on to decide whether: a) one decedent survived the other, or b) the decedents died simultaneously within the meaning and intent of the Simultaneous Death Law, now codified as Chapter 471, RSMo 1986.1 The trial court found, inter alia, that Suzanne survived Cecil, and the personal representative of Cecil’s estate has appealed. We affirm.

John Christopher Rankin, the male child of decedent Suzanne Hughes and one Gene Carlos Rankin, lived with his mother on July 16, 1985. John was then 13 years of age. About 7:30 a.m., John “heard the doorbell ring.” Cecil was at the door. Cecil came in the house. Suzanne asked if “[Cecil] wanted some coffee,” but very shortly thereafter she “started yelling and screaming.”

John “ran to the kitchen door” and saw Cecil’s back. Suzanne told John to run. John “stood there [a moment] and then ... heard [a] gunshot.” He then ran into his mother’s bedroom. When he got to the bedroom, John heard what he thought was a door closing. John thought Cecil had left. He dialed the police emergency number and reported that his mother had been shot.

John then went to see about his mother. He saw Cecil, “laying in the floor in the kitchen with his head just outside the doorway on the carpet.” Cecil was bleeding, and he had a “gun” in his hand.2 He had [789]*789shot himself through the head. John found his mother in the utility room “lying right in front of the washer.” John then testified as follows:

“Q. Was she on her back?
A. She was on her side.
Q. Okay. Which side?
A. Left side.
Q. What did you do then?
A. I rolled her over.
* * * * # *
Q. Well, did you — Was she breathing? A. Yes.
Q. How do you know?
A. Her chest was moving, and I could hear her.
Q. What did it sound like?
A, It was ... real raspy.
Q. About — About how long were you there? Can you estimate that?
A. Maybe two, three minutes.
Q. When you were talking to her, did she ever say anything to you?
A. No.
Q. Did she move?
A. No.
Q. Did you notice she was bleeding? A. Yes.
Q. Did you — Now, she .was breathing for two or three minutes; what happened then?
A. She quit.” (Our emphasis.)

John then tried to give his mother mouth-to-mouth resuscitation. He observed that:

“A. Her chest would rise, and I would hear a gurgling noise coming from the hole.
Q. The wound? Did you see the blood going out?
A. No.
Q. Did — Then, did she breathe any after that?
A. She took one breath, and then—
* * * * * *
Q. ... Did she breathe anymore after that?
A. No.”

The proponent also had the evidence of Dr. Erwin Busiek, Medical Examiner of Greene County. Dr. Busiek stated that he arrived at Suzanne Hughes’ residence about 8:20 a.m. He examined Cecil first because Cecil was close at hand. Dr. Bu-siek’s examination of Cecil’s corpse disclosed that Cecil “had a through-and-through bullet hole [in his head], entering the right side of the head and exiting the left.” This meant that the bullet had passed through Cecil’s brain. Dr. Busiek was asked if he had seen bullet wounds like Cecil’s on other occasions; he replied “[m]any times.” He was then asked the probable effect of such a wound. His answer was “In gunshot wounds of this type and location, death is almost always — not always, but almost always — instantaneous.” The doctor’s opinion was that most likely, Cecil died instantly.

Describing the wounds he found when he examined Suzanne, Dr. Busiek testified that a “bullet entered Suzanne in the left back area ... and exited in the left upper outer quadrant of the chest.” He believed it was possible that Suzanne lived after she was shot. Being asked his opinion concerning the immediate cause of Suzanne’s death, the doctor stated that “she became unable to breathe and to exchange air because of [the] presence of blood in the lungs, which obstructed breathing.” Dr. Busiek was of the opinion that the bullet which passed through Suzanne’s chest did not enter her heart.

Upon cross-examination, Dr. Busiek was shown a photograph which indicated that Suzanne might have sustained more than one gunshot wound. The doctor did not remember seeing more than one gunshot wound, but he stated that if the photograph indicated a second wound,3 the second wound was not such as to change his opinion that Suzanne had not been shot in the heart.

Other evidence was received, but in the view we take of this appeal, it need not be synopsized. The primary question before the probate division was whether Cecil and Suzanne died simultaneously, or one survived the other. In our view, there was substantial evidence that Suzanne survived Cecil for a very short time.

[790]*790Appellant’s first three points are directed to the sufficiency of the evidence. These points overlap. Only the first point need be addressed separately. In her first point, the appellant argues that the trial court erred, to her prejudice, in allowing Officer Steve Blunt to testify that Cecil’s head wound was instantaneously fatal. Appellant’s objection is that Officer Blunt was not qualified to testify concerning the effect of Cecil’s head wound. In connection with this point, it is sufficient to say that in a court-tried case, it is practically impossible to predicate reversible error on the erroneous admission of evidence. In re Estate of Black, 693 S.W.2d 899, 901 (Mo.App.1985). A party advancing such an argument must demonstrate a lack of competent evidence to support the decree. Green v. Stanfill, 641 S.W.2d 490, 491 (Mo.App.1982). In this case, there was evidence, aside from Officer Blunt's testimony, from which the court could have concluded that Suzanne survived Cecil.

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Bluebook (online)
735 S.W.2d 787, 1987 Mo. App. LEXIS 4627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-hughes-moctapp-1987.