193 A.D. 369 | N.Y. App. Div. | 1920
Lead Opinion
The plaintiff has recovered a judgment for the loss of the life of her husband, Edwin W. Ensign, on two policies of insurance issued by the defendant. One is an accident and health policy, the other is an accident policy. The only question raised by the defendant on this appeal is that Mr. Ensign is not dead or if dead he did not accidentally die. After a
Mr. Ensign was an undertaker by occupation. He married the plaintiff in the year 1901. They had two children, twin boys, born in the year 1907. In that year he formed a partnership with Mr. Bates under the firm name of Ensign & Bates. The firm purchased an established undertaking business in the city of Hudson, N. Y., and continued to conduct it until the alleged death of Mr. Ensign on December 12, 1918. In the meantime the firm started and conducted an automobile business in connection with the undertaking business. Both partners resided in Hudson during the entire period of the existence of the firm. Mrs. Ensign, the plaintiff, owned a cottage at Lake Charlotte, about twelve miles from Hudson, where the family was accustomed to spend its summers. During the autumn of 1918 the family, or a portion thereof, made occasional week-end trips to the cottage. In the early part of December Mr. Ensign was alone at the cottage for a number of days. He was making some repairs and improvements which included the placing of linoleum on the upper floor and painting the same. Evidence is produced of one or more witnesses who were in the cottage at this time and saw the work which was being accomplished and it is established that he took with him two rolls of linoleum from Hudson to the cottage. It had been his custom at different times to make trips to the cottage and spend some time there alone. While at the cottage on the occasion mentioned he was called home on account of the serious illness of - his two boys who had influenza pneumonia, a very prevalent disease at that time. December 12, 1918, was a mild and pleasant winter day. The boys were then convalescing from their illness. Mr. Ensign announced his purpose of going to the cottage to complete the work he had in view and close it for the winter, saying that he might return that night but that if he did not finish his work he would remain there and return the following morning. He left home about two o’clock in the afternoon taking with him a lunch consisting of two sandwiches and a piece of cake. He took with him no money except such as he might ordinarily have carried and no clothing except what he wore, consisting of
The body was found in the living room of the cottage beside a bed. This bed with other furniture had been brought from the rooms above when Mr. Ensign was making his improvements in these latter rooms. The purpose of bringing the. bed downstairs may also have been to sleep in that room which was warmer. The cottage was heated by an old-fashioned wood stove in the living room. Only two fragments of this stove survived the fire and were identified by the plaintiff. The coroner, who was called to the scene of the fire shortly after its occurrence, testified that one of these fragments was found by him near a stone and near the head of the body which according to the evidence was about eleven feet from where the stove was standing. It is admitted that carbon monoxide was present in the dead body. The defendant gave evidence tending to show and claimed that such carbon monoxide did not cause death. That may be admitted. The point is, as bearing on the question of the identity of the body, that it was present; that according to the evidence it is the product of imperfect combustion, and that it is formed by explosion or may itself be explosive. The fragments of the stove above mentioned were introduced in evidence and exhibited to the jury. It is claimed by the plaintiff, and such claim is not controverted by the defendant, that one of these fragments appeared to have “ buckled outward,” indicating the application of force from within. However that may be, it was a legitimate inference by the jury from the evidence and the jury must, therefore, be .deemed to have so found that carbon monoxide was generated in the stove and that an explosion occurred throwing the fragments to the places where they were found and starting the conflagration. It was not incumbent on the plaintiff to prove the origin of the fire for the purpose of identifying the body in question as that of her husband. She may establish such identity by any other evidence at her disposal, but it is very clear that if the accidental origin of the fire has been established to the satisfaction of the jury it disposes of .the defense herein because the corner stone of that defense is that the fire had an incendiary origin.
The plaintiff’s case does not rest here. The defendant availed itself of its right under the policies to make an autopsy of the body of the deceased. It was made for the defendant by Dr. Schultze. The brains, heart, lungs, liver, spleen, kidneys, stomach and intestines of the deceased, except such portion of the latter as was destroyed by the fire, were carefully examined. Clearly after such an examination and inspection of the vital parts of the body the defendant should be able to demonstrate what caused the death of the person in question. That was the purpose of the autopsy. That was the claim of the defendant at the trial and is its claim on this appeal. It contends that the person in question died from influenza pneumonia. Admittedly the person had that disease, but the plaintiff denies that it was the cause of death. At the time when Dr. Schultze made the autopsy he signed a detailed report thereof. That report may safely be assumed to be correct because the autopsy was witnessed and the report verified by five physicians, including Dr. Vaughan, representing the plaintiff. There was a serious inconsistency between the testimony of Dr. Schultze as given at the trial concerning the condition of the lungs and his original report of the autopsy. The report shows that the right lung contained numerous fine yellowish grey nodules, but shows nothing of the kind in respect to the left lung except that it states that the anterior bp.lf of
Here the discussion might naturally conclude. In the dissenting opinion, however, some facts' are stated in such a manner as to render appropriate further discussion concerning the same. I do not share in the suspicions of the presiding justice. Neither do I agree with all his' statements of facts nor with all the inferences which he draws therefrom. It is called to our attention that the policies involved in this action are accident policies, one of which provides for a double indemnity for death in certain specified ways, including death in a burning building, and that the other provides for liability only in case of death in certain specified ways, including death in a burning building. Turning to the policies we find that the first one was both an accident and health policy; that it was issued shortly after Mr. Ensign recovered from an illness “ for stone in kidney lasting four weeks; ” and that both policies provide elaborate schedules of indemnities not only for death but for various kinds of accidents and for various kinds of injuries and disabilities. They were both issued in the year 1916, two years or thereabouts before the fire. The annual premium of the first policy was $80 and of the second $51. They are such policies as any active man might naturally have taken. If they had been conceived in fraud it is improbable that the insured would have paid a larger annual premium for a policy which on the consummation of the fraud was expected to produce a much smaller amount than the less expensive policy. There were a number of other accident policies which are not set forth in the record but they probably contain substantially the same provisions and probably are of the same general nature as the two involved herein. It is true that in the year 1918 Mr. Ensign materially increased his insurance, but of the total amount of the maximum insurance of $103,250 this defendant
It is said that the annual income of Mr. Ensign was $1,300 and that a payment of $5,500 by Mr. Bates to the plaintiff as the executrix of the will of Mr. Ensign “ represented the return of any capital originally put in the business by him and one-half of the profits of the business since 1907.” As I read the evidence there is no justification for either statement. Mr. Bates when being examined as to whether Mr. Ensign drew from the business any unusual amount just prior to the burning of the cottage, testified that he drew nothing except what each partner was drawing from the business for living
Equally unjustifiable is the argument in reference to the height of the body found in the fire. It is conceded that from the length of the femur the height of the man may be ascertained in twenty per cent of cases within three inches approximately and in the remaining eighty per cent of the cases with greater accuracy. The length of the femur in the body in question was forty-nine and one-half centimeters. There was some confusion in computation, but applying the rule in practice for determining the height of a man whose femur is forty-nine and one-half centimeters, Dr. Vaughan finally made his height less than one hundred and eighty-two centimeters which, reduced to feet and inches, is less than six feet, well
I am unable to grasp the mental processes by which it is argued that the body found in the fire had been mutilated to prevent identification. The hands and feet and portions of the arms and legs had disappeared. I do not understand there is any evidence indicating that they had been severed from the body and I am unable to comprehend how the hands or feet, particularly without the flesh thereon, in the absence of some abnormality, would have any bearing on the question of identification. The presence of the brain precludes the argument that the head had been removed. As I understand the contention in this particular it is that Mr. Ensign selected a body of a male person about his own age, size and height, but without any teeth, and that he subjected the head to some artificial heat independent of the burning building for the purpose of destroying any indications that there were no teeth, and that he procured some gold in quantity and quality such as might simulate the gold in his own teeth and placed it under the head of the body in question and deposited his keys under the body where they would be protected to a large extent from the fire so that they would survive the fire. The presence of a pan over which, according to the evidence of one witness, the head was lying is seized on as a straw to lend color to this contention. That argument strikes me as too fantastic for serious consideration. Aside from the natural difficulties and impracticability of executing such a subtle scheme it implies on the part of the schemer a superhuman omniscience whereby he could determine just how the scheme was going to work out. How was he to know that the gold and keys would survive the burning building? But aside from all other considerations the argument ignores entirely the testimony of
Incidentally it is difficult for me to understand why if this was a dishonest fire the bed should have been removed from the
The empty stomach proves nothing in view of the testimony of Dr. McKenna, the defendant’s witness, that it “ shows that nothing had been taken in for at least a period of three hours.” Naturally the insured had not eaten in three hours before the fire. I do not understand that the evidence establishes that there were no contents in the intestines. Dr. Schultze at the trial substantially so testified except that he admitted that “ the small intestine contained very little recognizable content.” Experience demonstrates that the original report of the autopsy made by this witness is more reliable than his testimony, and turning to that report which at the time of the autopsy represented the agreement of both parties to the controversy as to what the autopsy disclosed we find the following: “ The small intestine is mostly charred, very little of it shows appreciable contents. The caput coli shows its mucous membrane stained with feces, very little contents. The hepatic flexure is charred. The right half transverse colon is collapsed and empty. The spleenie flexure of the colon and descending colon is absent. On the left side of the abdomen over the area of the descending colon the abdominal-wall is absent and its margin in the opening is charred and ragged.” Although the report is silent on the point, the testimony shows that a portion of the rectum was absent. With a portion of the intestines missing and what was left showing some contents and a part showing “ appreciable contents ” it is a
I have not attempted to answer all the arguments advanced or suggested in the dissenting opinion. Some of them seem to me to be trivial and unimportant. Others are based on evidence which the jury had a right to reject. All of them should be addressed to the jury. I think one of the fallacies of that opinion consists in attributing to the expert testimony a conclusiveness to which it is not entitled. Ordinarily such
I do not think what may be called the human aspect of a case like this should be entirely ignored. The conduct of the insured during the few days preceding the fire should be carefully considered. The renovation and improvement of the cottage by him as “ a surprise to the family in the spring,; ” the removal of the bed from the upper to the lower part of the house; his anxious solicitude for his sick boys repeatedly and variously manifested; his purchase for one of them of the thrift stamps on the day he left home; his preparation on that day of the meal for the use of the family after his departure; his delivery to his wife when he departed of a small sum of money to purchase family supplies; his invitation to the neighbor to ride with him on his way to the cottage and the usual and ordinary conversation in which they engaged; the message to his wife at about seven o’clock in the evening; his visit of about an hour with the Wentzel family, engaging as he did in ordinary talk with his usual appearance; these and other instances which might be mentioned are not indicative of a man whose mind
The weakness of the defense is emphasized by the necessity which is recognized in providing an accomplice for Mr. Ensign. The accomplice selected is his partner. As they were partners in business so it is insinuated they are partners in crime. This adds to the improbability of the defense. Not one but two reputable citizens with long and honorable and successful business careers have suddenly become criminals. Mr. Ensign did not need the assistance of his partner to accomplish this crime. The sole connection of Mr. Bates with the transaction consists in pouring water on the burning body when he was summoned to the fire, an act which did not promote but on the contrary retarded it and tended to expose the conspiracy if it existed in which he was himself concerned; or was that also done to avert suspicion? The necessity of an alleged accomplice arises, of course, from the fact that without one Mr. Ensign could not expect to profit to the extent of a single dollar. If such a conspiracy could be successfully accomplished it
No ruling during the trial is complained of on this appeal. No objection or question of any kind is raised in criticism of this judgment except that the insured is not dead as the result of an accident.
For all the reasons stated I think the judgment and order should be affirmed, with costs.
All concur, except John M. Kellogg, P. J., dissenting, with an opinion, in which H. T. Kellogg, J., concurs.
Dissenting Opinion
The plaintiff’s cottage, at Lake Charlotte, twelve miles from Hudson, was burned on the night of December 12, 1918, and in the ruins was found the charred trunk of a man. Recovery has been had upon two accident policies to the plaintiff, upon her husband, one dated July 19, 1916, for $7,500, with a double indemnity for the loss of life in a burning building, a public conveyance or passenger elevator, thus making that policy, as the jury finds, $15,000; the other, dated December 21, 1916, for $20,009, for death by accident while in a burning building, upon a public conveyance or upon a passenger elevator. The question for consideration is whether the plaintiff’s husband met an accidental death in the burning building.
At the time of the fire the total insurance, life and accident, covering Ensign’s life, if he met accidental death in a burning building, a public conveyance or a passenger elevator, was $103,250, of which $56,250 was payable to the wife, $5,000 to
After February 27, 1918, Mr. Ensign was very active in insurance matters. On that date two life policies, together calling for $5,000, were issued, in which the wife was named as beneficiary. The beneficiary was changed July fifteenth to the wife and two children. April 6, 1918, a life policy of $10,000 was issued, his estate being the beneficiary; June twenty-eighth the beneficiary was changed to the partner, Bates. May fourth a joint policy was issued upon the lives of Ensign and Bates for $15,000 for benefit of the survivor. On July sixth an accident policy for $5,000 was issued, payable to Bates, with double indemnity in case of loss in a burning building, a public conveyance or a passenger elevator. On August 16, 1918, a life policy of .$5,000 was issued to his estate; on October twenty-fourth the two children were substituted as beneficiaries. On November 20, 1918, he took an accident policy with an indemnity for loss of life during the first year of $2,000, payable to Bates. In all of the fife policies issued in 1918 the premium' was payable quarterly, and on the policy of August 16, 1918, a note was given for the premium falling due a few days before the fire. Bates testified that the premiums upon the joint policy and upon the $10,000 policy payable to him, or $1,322.60 per year, were payable by the firm. The other premiums clearly were an obligation against Ensign alone. He and Bates were equal partners as undertakers at Hudson, N. Y. It does not appear that there was any policy, accident or life, upon the life of Bates for Ensign’s benefit, other than the joint policy mentioned. These policies called
Ensign and Bates had a morgue in the office building and a vault in the cemetery, in each of which were many dead, bodies. On account of the influenza there had been many deaths, and both partners had been very busy. Bodies came to the morgue from hospitals; other bodies came from private homes; in some cases the persons who died had no homes; some of them were foreigners. Ensign was the embalmer and had charge of the dead bodies. In one week the firm had thirty funerals. Both partners were men-of good standing in the community. Bates had a wife and two children. Each partner drew from the business $25 a week for living expenses. Ensign had no individual property except the little cottage at the lake which had been purchased by him and deeded to the plaintiff. The firm owned the building in which the office was, subject to a mortgage of $4,000. Bates’ house was mortgaged for $2,500. The firm, a few months before the fire, as “ a side fine,” had begun the sale of automobiles, and had outstanding notes, business paper, on that accounts, of $9,000, and it owed $4,700 in other indebtedness, apparently, in addition to the mortgage. Ensign' personally owed about $800, which
The Ensign family lived at. the cottage during the summer, up to about Labor Day, and he was frequently there nights. Some time about the latter part of November, 1918, Ensign, it is said, began to make certain repairs upon the cottage and was there several days. Among other things, he removed the furniture from the second floor to the first, put down some linoleum on the second floor and was to paint it two coats; this was intended as a surprise to his family in the spring. He was called suddenly from the cottage on account of the sickness of his children who had the influenza. On the day of the fire the children were better and it was understood that the woman who was assisting in taking care of them would leave the first of the week.
Ensign, the morning of the fire, was cheerful and in his usual good health. He said he would go to the cottage and close it for the winter. His breakfast, at about seven o’clock, consisted of two or three pieces of sausage, five or six pancakes, bread and butter and coffee. His luncheon, about eleven o’clock, consisted of soup, pie, bread and butter and milk. Sandwiches and cake were prepared for him to take to the lake. He went to the lake in the Vim truck in which there was nothing but himself; left the truck at a neighbor’s and went to the cottage. Hammering was afterwards heard at the cottage. In the evening, about eight o’clock, he came down to the neighbor’s, about 500 feet from, the cottage, visited with the family a few moments, telephoned to Bates, at Hudson, that he would be home early in the morning and bought a quart of milk. He
When the neighbors arrived upon the scene, the burned body rested upon a bed of coals thicker and higher than was found in other places, and this thickness reached out several inches beyond the body. Both arms, and both legs up to the knee, the skull, the face, the jaws and the teeth were missing. There was attached to the bone of the neck a carbonized mass, about four inches from back to front, four inches from side to side and two and seven-tenths inches in height from the upper bone of the neck. At the autopsy the mass proved to be -the brains. It was found in or over a granite milk pan, the neck laying over, the edge of the pan. Sometime after the body was removed Ensign’s keys were found lying on top of the ashes, apparently about where the hips of the corpse lay. A Lincoln penny lay six feet from the corpse. A constable’s metal badge, a plaything of his children, was also found, as well as a substance apparently gold which may have crowned one or two teeth. The gold watch which Ensign wore, and which was upon his person when he left home, could not be discovered, nor could the coins which the neighbor had given him as change. The keys were blackened, but the defendant’s expert swears that an examination of them showed that they could not have been through a fire. The ashes and the debris in the vicinity of the body were carefully sifted and examined; the ashes in the pan in which the head lay were also examined. Some pieces of bone, which could not be identified or put together as forming any part of the missing members, were picked up, together with some molten glass and an animal’s bone. There was no cellar under the building; it rested on cement or stone posts and was about a foot from the ground. An iron bedstead, with wire springs, which had been brought down from upstairs, stood near the door and the window; the head of the bed was towards the door and within two or three feet of it. The foot of the bed reached out into the room toward the stove. The chimney had fallen inside the room and eight or ten bricks were found near the foot of the bed.
It will be noticed that the absence of the feet, the legs, the forehead, skull, jaws and teeth, would naturally obliterate not only every ordinary means of identification, but every ordinary means of ascertaining the height of the body in life. The record establishes that where a body is consumed by fire, the teeth and shin bone practically remain intact and, .at a crematory, have to be destroyed, after all else has disappeared but ashes, with mortar and pestle. It is seldom that the skull, forehead, jaw bones, legs and arms are missing. They may be weakened by the fire and reduced to such a state that they can be disintegrated, but they keep their shape until force is applied to them. There is no substantial dispute upon this subject. Possibly, of course, the falling debris may have caused more or less disturbance. But the fallen brick were at the foot of the bed, and there is no suggestion that the granite milk pan, in which the head lay, was broken. ■ It would, therefore, .seem that the teeth, jaws, skull and bones of the head would naturally be found in the pan. The evidence as to the probable survival of the bones in a fire, after the other material of the body, has disappeared, is interesting and convincing.
It is conceded that, with knowledge of the length of the femur, in one or two directions, the height of a man, with reasonable certainty, may be ascertained. The plaintiff’s expert says that in fifty per cent of the cases it is correct within a fraction of a centimeter; that in thirty per cent it varies not to exceed an inch and in twenty per cent there may be a variation which will reach, in some cases, to three inches. The length of the femur here is undisputed. Dr. Vaughan, the plaintiff’s expert, reckoning from it, gave the height .of the dead man as between seventy-one and seventy-two inches, or
The insured, on his former visits to the cottage, had always left this truck near the cottage; this was the only time he left it at Wentzel’s. He left the truck at Wentzel’s barn at three o’clock and returned there about six o’clock, put it in the barn and drained the water from it. He came back between seven and eight to. telephone and get the milk. Upon leaving home Ensign told his wife that he would be back about ten o’clock if he got through his work; if not he would stay there and have a good sleep. When he put his truck in the Wentzel barn at six o’clock, drained it and locked the door, he knew that he was not to return home that night.
Dr. Gettler’s report shows the presence of formalin, the base of all embalming fluids, in the kidney and liver. Bates swore
Bates went to the cottage about a week before the fire to get Ensign. The road from the State road to the cottage, about two miles, was a very bad dirt road. As he left the State road and got half way up the hill, he tore a chain from his car and it was so muddy that he left the car there and continued the trip to the lake afoot. On the day of the fire, after Ensign had left Hudson at two o’clock, Bates, about four o’clock, ordered the chauffeur to put chains on the touring car, so as to be ready for a night call. It was a bright, fine day Ensign, on the morning of that day, had the chauffeur repair
At the autopsy Dr. Schultze represented the defendant and Dr. Vaughan the plaintiff. There were present several other doctors and others. Dr. Vaughan and Dr. Schultze agree fully as to the accuracy of the report of the autopsy. That report is complete, and shows the condition of the charred body, giving a particular description of the lungs, stomach, heart, kidneys, spleen, liver and pancreas. From the lungs over thirty blocks, varying in size from a half inch square to nearly an inch square in extent, were taken. Dr. Vaughan had a half of each block and he delivered those from the stomach, lungs, kidney, liver and spleen to Dr. Symners, the pathologist of the Bellevue Alhed Hospitals, for microscopical examination: Dr. Symners made the examination and his report was a letter written to the plaintiff’s attorneys, which we copy:
“ Gentlemen: Microscopic examination of portions of certain organs submitted to me by Dr. J. C. Vaughan, reveals the following changes:
“ Lungs: Many of the bronchioles together with some of the alveoli are filled to the point of distention by polynuclear leucocytes. The most noticeable change in the lungs, however, consists in the presence of an exquisite organizing pneumonia. The process of organization being manifested by a diffuse overgrowth of richly cellular fibroblastic connective tissue. At one point is a rather large thrombosed blood vessel. Some of the alveoli are emphysematous, and in places the interstitial tissues are rich in coal dust. The blood vessels of the pierna are deeply injected.
“ Kidney: One part of the kidney shows wide spread necrotic changes. Another part reveals increased cellularity of the Malpighian tufts, together with intense granular degeneration of the lining epithelium of the tubules. The lesion in the better preserved portion of the kidney is that of a sub-acute productive glomerular nephritis.
“ Microscopic examination of the fiver, muscle tissue and spleen shows extensive necrotic changes. (Signed) Douglas Symners, Director of Laboratories.”
■ The report of the autopsy shows a thinness of fat in the several places where fat was found. Dr. Schultze swears that the underlying fat between the muscles of the belly was well preserved, but was very thin and scant, showing that the fat of the man had been consumed in nourishing the body by reason of inability to take food. The plaintiff’s expert does not. in any way deny or seek to qualify this testimony. It must always be remembered that Dr. Vaughan, the only expert appearing as a witness for the plaintiff, made no microscopical examination, and that he agrees in every respect with the report of the autopsy. The stomach was empty, the small and the large intestines were substantially in the same condition and the colon was completely contracted and empty. These facts, connected with the scantiness of the fat, showed that the man had not been eating much for some time, and are entirely inconsistent with the meals which Ensign ate during the day. As we have seen, Ensign had sandwiches, cake and milk at eight o’clock. There was an absence of carbon and soot in the larger air tubes, but in case of death by conflagration they would be found. The blood was clotted, while in cases of death by conflagration it would remain fluid. The coal dust, spoken of by Dr. Symners, is always found present in the lungs in civilized life.
It is impossible, in the length of an opinion, to refer particularly to the autopsy and the evidence of the experts. Dr. Vaughan, plaintiff’s expert, concedes that the man had been suffering from influenza pneumonia for a week or more. He says
The plaintiff refers to the report of Dr. Gettler, her expert, made to her attorneys, where he says that a chemical examination of the blood shows that there was present a small amount of carbon monoxide and urges that it resulted from the low combustion .in the wood stove or heater before the flames started, overlooking the fact that Ensign had been at the cottage since about three o’clock and presumably, at that time of year, had a fire in the wood stove from that time to bed time. It is suggested that possibly this poisonous gas caused his death and, to be consistent, that after the heater had emitted the gas it became so hot that it broke open and set the building afire. There is no dispute in the evidence that this poison has a peculiar affinity for blood. Dr. Schultze swears that in the vena cava, the largest vein of the body and which carries the blood from the body to the heart, the blood was clotted, and it was carefully examined for this chemical substance, which was found absent, but that in the blood in the roasted liver it was found in small degree where the surface was exposed; that if inhaled it would have shown in the vena cava. He swears that a portion of the clotted blood from the liver was apportioned to Dr. Vaughan, and infers that that was the blood delivered by Dr. Vaughan to Dr. Symners. Dr. Vaughan and Dr. Symners made no attempt to identify the blood in which the latter found the carbon monoxide, and, therefore, having the means of showing that Dr. Schultze was wrong, if he was, we may fairly assume that he was right. Plaintiff’s failure to call Dr. Symners. as a witness gives room for an inference that his evidence would not have been favorable to her. The case was tried upon the sole theory that death was caused by the burning building and not that it was an instantaneous death from carbon monoxide gas. If that was the cause of the death, the recovery could not stand except perhaps for $7,500, as the death must have
We again refer to the fact that what remained of the head was found in or over a granite milk pan, of ordinary size, and that most of the head had been completely destroyed. It seems incredible that such destruction could have come from the burning of this summer cottage. Evidently the head was subjected to a more intense and constant heat than any other part. What was in the pan if anything beftire the fire does not appear; the cause of its presence and its peculiar relation to the head, and its use, can only be inferred.
Expert evidence many times is justly criticised, and where there is a disagreement by experts it may be difficult to arrive at a correct result. But here there is no substantial, well-founded disagreement between them. The findings of the autopsy are agreed to by all. The plaintiff’s pathologist and the defendant’s pathologist, the only men who examined microscopically the stomach, lungs, kidneys, liver and spleen, agree as to their condition. The uncontradicted evidence shows that the dead body was not that of Ensign.
The judgment should be reversed as against the evidence and a new trial granted, with costs to the appellant to abide the event.
H. T. Kellogg, J., concurs.
Judgment and order affirmed, with costs.