CHAPTER XXV.

SURVIVORSHIP.

540. Competency of medical evidence as to.

540. Competency of medical evidence as to.-Though survivorship has always been treated as a subject pertaining to medical jurisprudence, the only questions of medical jurisprudence which seem to enter into it are those with relation to proof of survivorship of one victim of a common disaster over another, by medical evidence and scientific medical opinion. With reference to these questions the civil law doctrine, and that of the states and countries adopting it, is that when two persons perish in the same calamity, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, survivorship is presumed from the probabilities resulting from strength, age, and sex, according to certain rules.1 And under that law, and previous to the adoption of a different doctrine under the common law, a scientific opinion as to the probable survivorship seems to have been universally regarded as admissible.

The doctrine of the common law, however, is that where several individuals perish by a common calamity, and there are no circumstances other than those of age, sex, etc., from which it may be rationally inferred who was the longest liver, no presumption arises upon which a conclusion can be predicated; and in such a case there is no

1 See Hollister v. Cordero, 76 Cal. 649, 18 Pac. 855; Sanders v. Simcich, 65 Cal. 50, 2 Pac. 741; Langles' Succession, 105 La. 39, 29 So. 739; Robinson v. Gallier, 2 Woods, 178 Fed. Cas. No. 11951; New ell v. Nichols, 12 Hun, 604, Affirmed in 75 N. Y. 78, 31 Am. Rep. 424; Re Hall, 12 Chicago Legal News, 68, 9 Cent. L. J. 381.

Louisiana and California seem to be the only American states in which the rule of the civil law has been adopted.

enactment. And where two persons perish at the same instant, or where it is impossible to declare which perished first, the person seeking to disturb the title or possession of others, on the ground of such survivorship, must fail. Robinson v. Gallier, 2 Woods, 178, Fed. Cas. No. 11951.

* See Underwood v. Wing, 4 De G. M. & G. 633, 23 L. J. Ch. N. S. 982.

"Smith v. Croom, 7 Fla. 81; Kansas P. R. Co. v. Miller, 2 Colo. 442; Re Hall, 12 Chicago Legal News, 68, 9 Cent. L. J. 381; Balder v. Middeke, 92 Ill. App. 227; Russell v. Hallett, 23 Kan. 276; Johnson v. Merithew, 80 Me. 111, 6 Am. St. Rep. 162, 13 Atl. 132; Cowman v.

And even under the civil law as adopted in America, where two persons perish in the same event, there are no presumptions of law as to survivorship, unless prescribed by positive statutory

presumption either that one of the parties survived another, or that the two died at the same time; and the speculations and opinions of scientific witnesses based on such considerations are not evidence upon which a finding of survivorship may be based. Under this rule the question is always one of fact, depending wholly upon the evidence;"

the burden of proof of survivorship always resting with him who asserts that one victim of a common calamity survived another, and his case must fall if he fails to show it. But where a calamity, though common to all, consists of a series of successive events separated from each other in point of time and character, and each likely to produce death upon the several victims according to the degree of exposure to it, the difference of age, sex, and physical strength, becomes a matter of evidence, and may be considered. And if there are outside and independent indications of survivorship, the court may resort to all the circumstances attending the fatal catastrophe, and look to the respective situations of the parties with respect to locality and consequent exposure to danger, and also to their physical strength as imparting more or less ability to combat the impending peril. And it would seem that in such case medical evidence and the opinions of medical experts would be admissible as bearing upon such ability to combat impending peril, under general rules with relation to such evidence.10 And in order to arrive at a conclusion upon the ques

Chicago Legal News, 68, 9 Cent. L. J. 381; Russell v. Hallett, 23 Kan. 276; Paden v. Briscoe, 81 Tex. 563, 17 S. W. 42.

While general considerations, such as age, health, etc., may be resorted to to aid conjecture on the question of sur vivorship in a common catastrophe, where there is any evidence whatever, though it be but a shadow, it must govern in the decision of the fact. Pell v. Ball, Cheves, Eq. 99.

'Underwood v. Wing, 1 Jur. N. S. 169, 24 L. J. Ch. N. S. 293, 19 Beav. 459, 3 Week. Rep. 228, 31 Eng. L. & Eq. 293, Affirming 4 De G. M. & G. 633, 23 L. J. Ch. N. S. 982; Wing v. Angrave, 8 H. L. Cas. 183, 30 L. J. Ch. N. S. 65; Hitchcock v. Beardsley, West, 445; Taylor v. Diplock, 2 Phillim. Eccl. Rep. 261; Doe ex dem. Knight v. Nepean, 5 Barn. & Ad. 86, 2 Nev. & M. 219, 2 L. J. K. B. N. S. 150; Satterthwaite v. Powell, 1 Curt. Eccl. Rep. 705; Russell v. Hallett, 23 Kan. 276; Johnson v. Merithew, 80 Me. 111, 6 Am. St. Rep. 162, 13 Atl. 132; Fuller v. Linzee, 135 Mass. 468; Newell v. Nichols, 75 N. Y. 78, 31 Am. Rep. 424, Affirming 12 Hun, 604; Stinde v. Ridgway, 55 How. Pr. 301; Ehle's Will, 73 Wis. 445, 41 N. W. 627.

Where the benefits of survivorship are not mutual, the burden of proof as to survivorship rests with the party to whom the survivorship would be beneficial. Pell v. Ball, Cheves Eq. 99.

Smith v. Croom, 7 Fla. 81; Pell v. Ball, Cheves Eq. 99; Ehle's Will, 73 Wis. 445, 41 N. W. 627.

'Smith v. Croom, 7 Fla. 81; Re Hall, 12 Chicago Legal News, 68, 9 Cent. L. J. 381; Broome v. Duncan (Miss.) 29 So. 394; Stinde v. Ridgway, 55 How. Pr. 301; Broughton v. Randall, 1 Cro. Eliz. 502, Noy, 64. And see Coye v. Leach, 8 Met. 371, 41 Am. Dec. 518.

Even the civil law presumption as to survivorship where two persons perish in the same calamity, as existing in Louisiana, only applies in the absence of circumstances of fact, and where the persons are respectively entitled to inherit from one another. Robinson v. Gallier, 2 Woods. 178, Fed. Cas. No. 11,951.

And evidence that a husband and wife, he being fifty-two years of age and she twenty-eight, were drowned by the sinking of a vessel in which they were passengers, and that a minute or two before the sinking they were seen in their stateroom, she lying down, and he standing up and holding to the door, he being perfectly calm and collected, and she appearing sick, does not show or tend to show that she survived him, notwithstanding the difference in their ages. Gallier's Case, 2 Southern Law Rev. N. S. 594.

10 See Pell v. Ball, Cheves, Eq. 99.

tion there need not be such an amount of certainty as will exclude the possibility that the fact could be otherwise; all that is necessary is that moral conviction should be induced by appropriate evidence ;11 the fact of survivorship not requiring any higher degree of proof than other facts in civil cases.12

CHAPTER XXVL

RAPE.

541. Scope of chapter.

542. Medical examinations and evidence as to. 543. Expert opinions.

541. Scope of chapter.-Though rape covers a wide field of the criminal law, and though its commission requires and furnishes opportunity for the frequent exercise of a high degree of medical skill, the questions arising are purely legal or purely medical. The only questions with relation to which the two sciences are so blended and inseparable as to make them properly a matter of medical jurisprudence would appear to be those with relation to medical examinations in rape cases, and evidence as to results and information obtained; and those with relation to the opinions of medical experts as to conditions, and as to causes and results of conditions, arising, or alleged to arise, from rape.

542. Medical examinations and evidence as to.-The physical condition of the complainant in a prosecution for rape may always be shown either in corroboration or contradiction of her testimony with reference to the acts in question; and the remoteness of a physical examination for the purpose of discovering such condition, from the time of the alleged rape, goes merely to its probative force as evidence, and not to its admissibility.1 And it has been held that the result of a medical or surgical examination of the person of the prosecutrix is not inadmissible because made five or six days after the alleged offense; or because made twelve days thereafter;3 or because made

1Gifford v. People, 148 Ill. 173, 35 N. E. 754; State v. King, 117 Iowa, 484, 91 N. W. 768; Bannen v. State, 115 Wis. 317, 91 N. W. 107, 965.

And the state may properly show, in a prosecution for statutory rape, that the prosecuting witness was delivered of a child at about the time when, if her testimony of the affair was true, it might have been expected. State v. Walke (Kan.) 76 Pac. 408.

And the testimony of a physician in a prosecution for rape upon a female