Ware v. Kinch

Citations

• 35 Ohio C.C. Dec. 547
• 29 Ohio C.C. (n.s.) 353

Syllabus

<p>DEATH — SURVIVORSHIP</p> <p>1. Evidence, Meager or Conflicting, not Presumption Determines Survivorship in Common Disaster at Sea.</p> <p>When in an action involving a determination as to which died first of two persons who perished in a common disaster at sea, the issue must rest on the evidence unaided by any presumption, and if the evidence fails to establish a probability of survivorship, the party having the burden fails. Conflicting evidence necessitates a higher degree of proof than meagerness of evidence, but such as it is the evidence must give rise to something more than mere conjecture and rise to a degree of probability which will enable a fair minded man to come to a conclusion.</p> <p>2. Son, Having Been Seen on Upper Deck After Cabin Containing Mother Was Flooded, Deemed Outliving Mother.</p> <p>When the question as to which outlived the other lies between a mother and her son, and the evidence is to the effect that the mother was last seen in her state room of the sinking ship, and a few moments later the son was seen on the upper deck after the part of the vessel in which the mothers room was’ located had sunk beneath the water, and there is no further testimony and no conflict, a court will conclude that the son outlived the mother and took under her will.</p>