(184 N.Y.S.)

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 12 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 2 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 ordinary working clothes, a fur-lined overcoat, and a cap. He drove to the cottage in an automobile truck owned by the firm, as he had done on former occasions. On the road he overtook and invited to ride with him a neighbor, who accepted his invitation, and proceeded with him in the truck to the lake. During the afternoon hammering was heard in the cottage. About 6 o'clock he went to the house of Mr. Wentzel, about 500 feet from the cottage of the plaintiff, and procured permission to keep the truck in his barn during the night. He drained the water from the radiator of the truck, after backing it into the barn, which was then locked. About 7 o'clock he again returned to the Wentzel home and purchased a quart of milk, as he had previously done. From there he telephoned to his partner, Mr. Bates, and sent a message to his wife, the nature of which the defendant did not permit to be disclosed. He remained at the Wentzel house about one hour, discussing with the family various topics, and manifesting nothing unusual or unnatural in his appearance or demeanor. He left there about 8 o'clock, saying that he was going to bed. The testimony of one witness is that he said he was going to the cottage to eat his supper. It probably is immaterial, but, if there is any importance in the discrepancy of the testimony, the advantage has been given to the plaintiff by the verdict of the jury.

About half past 11 o'clock that night a neighbor passing along the highway discovered the cottage to be in flames., He aroused the

Wentzel family. When they and others reached the cottage, it was entirely destroyed, except one post. In the burning ruins was discovered the body of a man burned beyond recognition. Where the head rested were subsequently found pieces of gold. It is not questioned that the gold was such as might have come from the teeth of Mr. Ensign. Most of his upper teeth were crowned with gold. Underneath where the hips of the body had rested was found a bunch of keys, identified as his. It is practically admitted, and there can be no question, that in the absence of fraud and incendiary fire the body found in the ruins of the cottage was that of the plaintiff's husband. The defense is that he placed a dead body in the cottage and that he started the fire and disappeared. The nucleus of this defense, of course, is that his business as an undertaker gave him the opportunity to provide a dead body, and with this as a starting point the defendant builds its defense mainly with the testimony of physicians and expert witnesses.

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 11 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.

(184 N.Y.S.)

When, in addition to the foregoing facts, the plaintiff established, as she did by uncontroverted evidence, that Mr. Ensign was a good husband, a good father, a good business man, and a good citizen, she had completely demolished the defense. These attributes are inconsistent with the commission of such a repulsive crime as is here charged. Furthermore, the crime, if successfully accomplished and undiscovered, obviously involves to the perpetrator consequences of such a serious nature, which suggest themselves to all, as to make the commission of such a crime unthinkable, and to discredit the defense, in the absence of some adequate motive or reason for the commission of the crime. The diligence of the defendant in this case, properly exercised, has not been rewarded with a particle of evidence explaining the alleged conduct of Mr. Ensign, which, except for some such explanation or motive, is unnatural and contrary to human experience.

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. Vaughn, 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 gray nodules, but shows nothing of the kind in respect to the left lung, except that it states that the anterior half of the lower lobe in its lower portion "shows lobulated areas of a yellowish gray color." In his testimony Dr. Schultze represented the yellowish gray nodules as being scattered throughout all of both lungs. The report shows explicitly that the right lung was aerated, and that the left lung was aerated, "with the exception of the upper third of the lower lobe in its anterior half, which is gray and solidified and nonaerated in part. The anterior half of the lower lobe in its lower portion the lung is firmer, and shows lobulated areas. of a yellowish gray color and very firm." In other words, the report confines the solidification of the lungs entirely to the anterior half of the lower of the three lobes of the left lung, and shows that all the rest of that lung and the whole of the right lung was aerated or filled

with air. In his testimony Dr. Schultze repeatedly represents the entire portion of both lungs as being solidified. He testifies:

"Around the air tubes in the lung, technically called the bronchi, the lung tissue, which is composed of air sacs, was filled with the products of inflammation, and on examination with the naked eye these parts of the lung were solid and contained no air."

Again he testified:

"All the lung being affected, in fact, from the air tubes to and including the air sacs."

Still further he testified:

"The lungs are solidified, hardened by the products of the inflammation in all parts of the lung."

On this testimony alone as to the condition of the lungs rests the claim that death was caused by pneumonia. Other physicians called by the defendant based their opinions as to the cause of death entirely on conditions as stated by Dr. Schultze at the trial. Dr. Vaughn personally examined the lungs, and agrees to the report of the autopsy as made by Dr. Schultze. It would seem that any competent physician, after such an examination, could tell whether the pneumonia was sufficient to produce death, without the aid of a microscope or chemical analysis. The latter might be useful, if there were a controversy as to the existence or nature of the disease.

Emphasis is placed by the defendant on a pathological report made by Dr. Symners at the instance of the plaintiff. I find nothing in that report which militates against the position of the plaintiff. Dr. Schultze testified that he took about 30 blocks from the lungs of the deceased for examination, and it is argued that he divided those blocks or sections of the lungs with Dr. Vaughn, who delivered all that he received to Dr. Symners. In this particular, as in others, the testimony of Dr. Schultze is discredited by his report at the autopsy, where he says:

*

*

"Two sections from the right lung, lower lobe, placed in jar, and a section from the upper lobe. Several pieces of the areas described in left lung were taken for examination."

It will be observed that the "areas described in left lung" were the only areas which according to his original report show solidification or hardness. Dr. Vaughn testifies it was these pieces which were divided with him, and which he delivered to Dr. Symners, and on the portions so delivered by him the report of Dr. Symners was based. But, if we assume that the report of the latter applies to the entire portion of both lungs, there is absolutely nothing therein indicating death by pneumonia, or for that matter any cause of death. It shows the presence of pneumonia, and that—

"Many of the bronchioles, together with some of the alveoli, are filled to the point of distention by polynuclear leucocytes."

As explained by Dr. Vaughn, the latter means, not pus, but pusforming cells, a reaction to the inflammation, "the productive agency of

(184 N.Y.S.)

the body, and the scavenger of the body." Dr. Vaughn testifies there is nothing in Dr. Symners' report showing the cause of death. That testimony was unnecessary. To me it seems apparent, without medical interpretation. It is noteworthy, also, that Dr. McKenna, the defendant's witness, emphasizes the idea that, in stating in answer to hypothetical questions that pneumonia caused death, he did not base his answer on Dr. Symners' report. Manifestly he found nothing therein to indicate the cause of death. The original report of Dr. Schultze, therefore, shows, as before stated, solidification or hardness merely in the anterior half of the lower of the three lobes of the left lung and that all the rest of that lung and the whole of the right lung was aerated or filled with air. The pathological report of Dr. Symners shows merely the presence of pneumonia, and contains nothing inconsistent with the report of Dr. Schultze, even though it be assumed, which is not the fact, that it applies to the entire portion of both lungs. Dr. Schultze, testifying to conditions materially inconsistent with his previous report, says that in his opinion the influenza pneumonia was the cause of death. Dr. Vaughn testified positively that in his opinion it did not cause death. He says it was localized, or not diffused throughout the entire area of the lungs. That is precisely what Dr. Schultze's original report shows, contrary to what he swore to at the trial. Dr. Vaughn also says the pneumonia was resolving or curing, and if it was curing, of course, it could not produce death.

Dr. Vaughn is corroborated by the original report of the autopsy as made by Dr. Schultze, and is not contradicted by the pathological report of Dr. Symners. Dr. Schultze is seriously contradicted by his own report. The jury believed Dr. Vaughn. That ends the defense, because very clearly, if the defendant, after the post mortem examination which was made, could not satisfy the jury that the person whose body was found in the fire died as the result of some disease, it necessarily followed that he must have been burned to death. So the jury reasoned, and such reasoning is logical. After the failure of the defendant to establish any other cause of death, it was of little avail to develop theories based on the clotting of the blood and scantiness of the fat around the intestines. Those circumstances may be accounted for, as we shall hereafter see; but, were it otherwise, the jury clearly had a right to disregard them, in view of the testimony, accepted by them, that pneumonia was not the cause of the death, and of the inability of the medical men to otherwise account therefor. It would be more satisfactory if Dr. Vaughn had testified that with the influenza pneumonia as found in this individual he could have been actively about as Mr. Ensign was the day he left home, and that his illness would not have been noticeable to observers. For this omission, however, the defendant and not the plaintiff is responsible. [2, 3] Questions by the plaintiff designed to develop those facts were excluded on objections by the defendant, which objections. brought from the court the ruling:

"I think the only question about this is as to whether this individual died from his pneumonia or not."