delivered the opinion of the court, October 9th 1876.
If originally the rulings covered by the first and second assignments were erroneous, they were cured by the subsequent agreement. It stipulated- “ that upon the trial of said cause * * * said defendant shall not set up nor attempt to maintain any defence,
The plaintiff in error cannot now allege a defective service of the summons, nor an irregular award of arbitrators. In an attempt to appeal from the award, the compаny had neglected to give the bail absolute, which the Act of Assembly requires from a foreign corporation. The time fixed by the statute for perfecting the appeаl had expired. A rule to show cause why the appeal should not be stricken off had been made absolute. It is true, more than a month thereafter, the court granted а rule to show cause why the recognisance on the appeal from the award should not be perfected. "Whether the court then had any poAver to grant the relief asked for, it is not necessary noAV to decide. Without waiting for a decision of the court, the parties, by agreement in writing filed, stipulated that the judgment and decreе of the court by which the appeal had been stricken off be annulled, the bail be perfected and the case be tried under the limitations and restrictions stated in the agreement. It confined the defence to proof of suicide only. It Avas by virtue of that agreement only the plaintiff in error acquired a right of trial in the Common Pleas. Hаving accepted its benefits, and enjoyed the rights thereby given, the company cannot now repudiate a part of the agreement. It, contravened no rule or policy of law. All the stipulations therein are binding on the parties. It Avas too late for the company to allege that the agreement Avas executed through ignоrance or misapprehension of facts connected with the issuing of the policy. The same reasons require the dismissal of the tenth and eleventh assignments:
We are unable to discover any error in the rejection of the evidence covered by the ninth, twelfth, thirteenth, fourteenth, fifteenth and sixteenth assignments. An opinion expressed by Mrs. Smith in thе lifetime and in the absence of her husband, cannot affect the right of action in this case. Her declaration could not affect the insured, for she was not authorizеd to act for him in the transaction. It cannot affect her, because she then had no interest in the matter (1 Greenl. Ev., sect. 179), nor can her declarations be proved Avhen they will affect the rights of other persons interested in the estate. The others did not derive any interest from hei\ Each has a separate and distinct interest in the fund. Their rights сannot be destroyed by her admissions or declarations: Boyd v. Eby,
Any error mаde in the rejection of evidence covered by the fifth assignment was subsequently cured. The plaintiff in error after-wards, without objection, proved by several witnesses, that from the fordway the current of water flowed towards the side of the river, opposite to where the body was found. This fact was not controverted. The evidence objеcted to, in the seventeenth assignment, was not in conflict with it. The two facts were consistent with each other. The theory of the plaintiff in error was, that if Smith had fallen into the , wаter at the fordway, the body would have floated to the Ulster side of the river. The company therefore assumed that Smith was not drowned in attempting to cross at the fordwаy. Hence, it contended he had intentionally drowned himself at or near the place where- his body was found. The defendant in error, conceding the current of water frоm the fordway to be as claimed by the opposite party, contends that Smith did not fall into the water at that crossing, but several rods below, where the water was deep. The fact that the water was deep a few rods below the fordway is not controverted. The night was dark and foggy. Some evidence was given of the tracks of the horse indicating he entered the water at this lower point. As tending to prove the horse had been in deep water it was shown he was wet on his neck, under his mane. It was therefore entirely pertinent to show that a body getting into the water at this lower point would float to the spot where the body of Smith was found.
Sufficient ground had not been laid to sustain the еighth assignment. The witness was not shown to be an expert in regard to the action of water. All the facts on which his opinion was predicated had been proved. The witness was not shown to be any more competent than the jury to draw an inference from those facts. There was, therefore, no error in rejecting evidence of his opinion.
The order in which testimony may be admitted depends much on the discretion of the court: Richardson v. Stewart,
We see no error in the third and fourth assignments. The policy on which this action was brought, issued the 20th December 1870. Smith was drowned the 16th September 1873. No allegation is made that any intent to commit suicide existed when the policy was procured. The court was very liberal in admitting evidence of acts and declarations of Smith, for many months preced
The offer contained in the sixth assignment may not be weaker than some evidence which was admitted. At first we were inсlined to think its rejection was error. A more careful consideration has failed to make the error so clear as to call for a reversal. The mere fact that Smith pointed out to his wife what property was his, •and what was his tenant’s, has no natural connection with an intention to commit suicide. It would be unreasonable to give it that еffect. The act is. entirely consistent with the conduct which usually characterizes persons engaged in his occupation. It did not tend to prove the crime alléged. It wаs, therefore, properly vyithheld from the jury. If the rejection was an immaterial error, working no injury to the plaintiff in error, it is no ground for reversal: Hillings v. Guthrie, 4 Barf 123.
We see no error in the nineteenth and twentieth assignments. The party alleging suicide must prove it. The mere fact of death in an unknown manner creates no legal presumption of suicide. Upon evenly-balanced testimony the law assumes innocence rather than crime. Preponderating evidence is necessary to establish the latter.- Nor does the fact thаt the body was found without any marks of violence on it create a legal presumption of suicide. The condition in-which the body was found was submitted to the jury, under an accurate charge. The learned judge called their attention to the facts proved, and the conclusions sought to be deduced therefrom. The-case was fairly tried on its merits. We see no sufficient ground to disturb the judgment.
Judgment affirmed.