After procuring that ruling, the defendant cannot consistently urge that the pneumonia, as described by Dr. Vaughn and by Dr. Schultze in his original report, would have prevented Mr. Ensign from going to the cottage and performing the acts which he performed that day. A party on appeal will be held to the attitude which he assumed at the trial. Hoffman v. Lehigh Valley Railroad Co., 188 App. Div. 414, 418, 177 N. Y. Supp. 140. Neither can the defendant urge with much cogency that the jury rejected evidence given by its experts in answer to questions which it would not permit the plaintiff's experts to answer. The defendant's physicians, however, admitted that with ordinary or lobar pneumonia patients might be around without prostration and manifesting no fever. "It is very hard to keep some of these people in bed," testified Dr. Schultze, speaking of patients with lobar pneumonia.

[4] 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 issued $60,000. Of the maximum insurance of $47,000, issued in 1918, $37,000 was payable to Mr. Bates. Of this latter amount $25,000 was issued by this defendant. If, therefore, there was anything unusual, strange, or suspicious about these policies, the defendant must have known it. It was a party to the contracts, which included more than one-half of the total insurance, and most of the entire insurance which was payable to Mr. Bates. The evidence discloses three of the defendant's agents at one time at the place of

(184 N.Y.S.)

business of Ensign & Bates, negotiating some of this insurance in 1918, which is payable to Mr. Bates. It is improbable that the reasons for making the policies payable to him were not disclosed to the defendant's agents, or it may be more accurate to say it is improbable that the reasons for doing so were not urged on the firm by such agents. At any rate the defendant was a party to the contracts, and was undoubtedly satisfied with the reasons, whatever they were. The plaintiff was not a party to the contracts, and does not know the reasons. It is too late now, when the defendant is called upon to live up to its contracts, to urge that they were suspicious, unnatural, or unreasonable. It did not so regard them during the time they were sources of income to itself. Of course the amounts and circumstances of these policies were proper evidence, as bearing on the question of fraud, but the importance of such evidence was entirely a matter for the consideration of the jury. And when all the facts concerning these policies are fully stated, and their true relationship in reference to their environment is set forth, the situation presents a different aspect than the situation as presented in the dissenting opinion. An incomplete statement may be as misleading as any other.

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 expenses, and which at that particular time was $25 a week. I find no evidence as to what either pas.ner had at any time put into the business or drawn therefrom, in the nature of profits or otherwise, except as stated. The defendant might have proved the facts, but for reasons satisfactory to itself it did not desire to do so. The plaintiff likewise might have done the same, but she did not need to do so. The uncontradicted evidence is that the business of the firm was very prosperous, and not merely "fairly prosperous"; that each year during the 11 years of the existence of the firm the business increased over the preceding year, and that the year 1918 was the most prosperous of all. The business could not be said to be even "fairly prosperous," if it yielded each partner only $25 weekly. The credit of Mr. Ensign at the bank was shown to be good. He had some trifling obligations, but they were not urgent, and were met promptly and without difficulty by his executrix after his death. The premiums on the policies in which Mr. Bates was interested were paid by the firm and treated as a firm expense. Furthermore insurance was not a new venture with Mr. Ensign. He had large policies existing at the time of his marriage, which subsequently matured and were paid. There is no evidence justifying an inference that he was pecuniarily embarrassed, or that the annual insurance premiums which he had obligated himself to pay were beyond his ability to do so. Neither do I find any evidence that Mr. Ensign or his

firm never paid an income tax, except that Mr. Bates testified that after the death of Mr. Ensign he paid no income tax on the business of the firm transacted during the year 1918.

[5] 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 20 per cent. of cases within 3 inches approximately, and in the remaining 80 per cent. of the cases with greater accuracy. The length of the femur in the body in question was 49.5 centimeters. There was some confusion in computation, but, applying the rule in practice for determining the height of a man whose femur is 49.5 centimeters, Dr. Vaughn finally made his height less than 182 centimeters, which reduced to feet and inches is less than 6 feet, well within the limits fixed by the witness, the exact height of Mr. Ensign being 5 feet 9 inches. There are 2.54 centimeters in an inch. Webster's Dictionary; Century Dictionary. In reducing the centimeters to inches, the witness erroneously assumed there were 2.50 centimeters in an inch, and in using that divisor an erroneous quotient of more than 72 inches was produced. The height as expressed in centimeters was correct. Nothing can change the fact that 182 centimeters are not more, but less, than 72 inches.

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 three disinterested witnesses that the skull was present when the body was discovered in the ruins of the fire. It was that which drew the atten

(184 N.Y.S.)

When the autopsy was

tion of the witnesses to the figure of a man. held, 15 days thereafter, the skull had disappeared. The reason for the transformation is found in the testimony of Dr. Schultze, the defendant's witness, as follows:

"Q. Well, doctor, bones will burn, if they are subjected to sufficient heat, will they not? A. The organic material of the bones will burn up. The unorganic material or ash of the bones will remain. Q. As we speak of burning the hand or foot of a person, if subjected to sufficient heat, it will be burned away, so it leaves nothing but ashes, will it not? A. Yes; but the ash would show the form of the bone, unless it was subsequently crushed or disintegrated in some way."

The disintegration had taken place intermediate the fire and the autopsy. If some person had purposely burned the head by artificial means for the purpose of destroying it, he would certainly have seen. that it was "disintegrated" before he abandoned his task. That would have been very easy, and without doing so the purpose of the burning was incomplete.

[6] The defendant produced witnesses from distant cities, who had cremated thousands of human bodies after death, and who testified that in all those cases the teeth survived the cremation. It is extremely doubtful whether such evidence was competent. A qualified witness may express an opinion in respect to the particular matter under investigation, but he cannot on direct examination give specific instances. The party against whom he is called cannot be prepared to meet individual cases. It will be assumed, however, for the purpose of this case, that such evidence establishes the opinion of those witnesses that the teeth of the body in question, if there were any, would have survived the fire, although they admit that they have had no experience in respect to persons who have met death in burning buildings, where the conditions are obviously different from the conditions which exist in the process of cremation. Those witnesses did not and could not know, according to their own testimony, whether the bodies which were cremated did or did not have teeth. It appears from their own testimony that they assumed, without any knowledge on the subject, that whenever teeth did not appear after the cremation none existed before. It is not strange that such evidence did not appeal to the jury. I shall assume, however, that the teeth are the hardest substance in the human body, and ordinarily would survive a fire. But it is not difficult to account for the missing teeth in this case. I quote from the testimony of Prof. Touceda, the defendant's witness:

"Q. What do you say as to whether teeth can be burned, so as to destroy their shape, by a degree of heat which is sufficient to melt cast iron? A. Well, I think that the shape can be altered considerably, because there is always more or less moisture there, and the gas as generated by the decomposition of the organic matter in the bone, or the moisture, that will generate gas that will disrupt the teeth, and they won't be in just the shape they were before. In other words, the answer to that question depends upon the rate that you would heat them. If you heat them slowly, this gas would go off without disturbing the shape of the teeth. If you heat them fast, it might cause a change. Q. The burning of the teeth, as you have described, they do burn, but they crack apart and separate; is that the idea? A. Portions of them burn just like a bone. There is organic matter in teeth, and

** * *

184 N.Y.S.-2

that portion burns. Q. So that, if some portion of the tooth of a human body came in contact with actual live coals of fire, some portion of it would actually burn, would it not? A. I think so. Q. And the remainder may crack apart and become fine particles? A. Well, that would depend upon conditions. If it was burned undisturbed, it wouldn't; it would retain the form of the tooth, as you see in this case here (indicating)."

This testimony must be construed in the light of the following facts: That Mr. Ensign had poor teeth; that this body was burned by a roaring mass of flames in the open air; that timbers were repeatedly falling on or about the body; that while still burning the body was subjected to the sudden reaction of 8 or 10 pails of water thrown upon it to preserve it and extinguish the fire; that after the fire was extinguished the body was handled, wrapped in a blanket, transported 12 miles, part of the distance over a rough road; that it was prepared for burial, buried, and after 15 days was disinterred and presented at the autopsy; that there were at the autopsy numerous small pieces or fragments of bone which could not be identified. In the light of the foregoing testimony of Prof. Touceda and of the foregoing facts, all of which are established, the jury were at liberty to determine that the absence of the skull and teeth was sufficiently explained.

As we have already seen, the disappearance of the skull intermediate the fire and the autopsy was conclusively established. It should be observed, also, that no witness testified either to the presence or the absence of teeth when the body was discovered at the fire. Probably they at that time escaped identification, but there is no evidence on the point. The entire evidence as to the absence of teeth relates to the time of the autopsy. Even Dr. Schultze admits that the incineration of the head in this case would account for the disappearance of the teeth in time. One of the witnesses testified to the presence of a pan in proximity to the head of the body. His exact testimony was: “It [the head] was over the pan; it wasn't directly in it." No other witness makes any allusion to the pan, except that it was present, and it does not appear to have been regarded by any one at the time as a suspicious circumstance. There was no cellar under the cottage. The floor was one foot above the ground, in addition to the thickness of the sills. Reference has been made to a stone near which one of the fragments of the stove was found. The stone, according to the inference of a witness, which must have been correct, had been under the floor of the cottage, which had been built over it. The floor, of course, was destroyed. Like the stone, the pan may have been under the floor. If the body in question was lying on the bed in the living room of the cottage, it must have rolled therefrom when the bed tilted with the burning floor. But if a person sleeping in the bed had arisen therefrom, and, overcome by flames, or smoke, or gases, had fallen to the floor, or if, as the defendant claims, a dead body was placed on the floor beside the bed, the body, when the floor burned thereunder, would have sagged to the ground beneath.

The point is that in any event the body, when found, could not have been in the same position in which it was before the floor burned. The fact that the head was "over the pan," therefore, is of no sig