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(184 N.Y.S.) nificance. The walls of the thorax and some of the ribs were burner away, indicating that the body was not lying face downward, as woul naturally be the case if an attempt had been made to burn away the recognizable features of the head. And is it conceivable that a person destroying the head by the method suggested would have left the pai thereunder? He would have reduced the head to ashes and remove the pan before be abandoned his gruesome task. Throughout this con troversy it has been assumed that Mr. Ensign, if in the burning cot tage, must have been sleeping on the bed in the living room. Perhap he was. But such assumption is not required. To facilitate his wor in the upper rooms, he had moved some of the furniture to the room below including one of the beds. Although he told his wife he ha moved the bed to the living room because it was cold, the night i question was not cold, and whether he was sleeping upstairs or down stairs is a question which cannot be determined. There were tw beds upstairs. Perhaps it is unimportant, except that the jury, in de ciding this case in favor of the plaintiff, were not required to find tha he was sleeping in the lower room.

It is no more difficult to understand the freakishness of the fire i consuming certain parts of the body more than others than it is t understand its freakishness in the destruction of the building and it contents. Not a single nail was found in the ruins, nor any part o the hardware of the building, except perhaps the lock and key of on door. Some of the glass, probably from the windows, but not all o it, remained. All cooking utensils disappeared, but a Lincoln penn and a metal badge, a plaything of the children, were subsequently found The old wood stove in the living room, except two fragments here tofore mentioned, had disappeared, and nothing was left of the stov in the kitchen. The iron bed, with its springs, in the living room, re tained its identity, except that it was warped and blackened, but no a vestige remained of an iron bed, which was in the upper roon It is beyond human ingenuity or explanation to account for such a parently inconsistent results. The burning of the body was no moj inconsistent. Fire and flood are not logical or consistent in their ra ages. Undoubtedly, however, it is a fact that the head of the bod was exposed to more intense heat than the rest of the body, becau: it was nearest to the burning side of the building.

Incidentally it is difficult for me to understand why, if this was dishonest fire, the bed should have beeen removed from the upper the lower room. I cannot conceive how the criminal purpose, if was such, was subserved or aided by that change. It would seem me that from every standpoint a person consummating this allege wicked plan would naturally have preferred the bed and the body be in the upper room, the natural place for both. The purpose cou better have been accomplished in that part of the house, and with greater appearance of naturalness, and I am unable to perceive ho from any standpoint, anything was to be gained by placing either t bed or the body in the room below. The fact that the bed was move is to my mind a strong circumstance against this defense. It may n strike all minds the same way, but certainly it was a circumstance t

importance of which was a question for the consideration of the jury.

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 contents.” 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 flexture is charred. The right half transverse colon is collapsed and empty. The splenic flexture 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 mistake to say that the intestines were empty, or to draw any inference based on the alleged absence of their contents. The testimony shows that Mr. Ensign had eaten very little on the day in question, except that he ate an ordinary breakfast. In respect to the scantiness of fat around the intestines or in the abdominal cavity, it would naturally occur to an ordinary layman, and doubtless occurred to the jurors, that such a roasting as that body received would naturally deplete the fat and reduce it to a minimum. Part of the abdominal walls and part of the intestines were entirely burned away, and other portions were charred to an extreme extent.

Dr. Schultze testifies that the blood in the case of persons burned to death does not clot. Dr. McKenna, defendant's witness, is not so sure about that. He says it does not "clot as a rule” and that it does not "generally” clot. His theory of the clotting is that it is caused by contact with air, and that the inhalation of smoke and gas by victims of fire excludes air from the lungs, but that in the course of time, if the body is left to itself, the blood will settle by the force of gravity and form clots. In other words, if the victim of a fire inhales smoke or gas, the blood-clotting process may be retarded or interfered with, but is not necessarily prevented, especially after the lapse of time. That is the way I understand this testimony, and I think that certainly is a fair inference therefrom. All these conditions, the contents of the intestines, the scarcity of fat, and the clotting of the blood, are stated in the report of the autopsy, and were known to Dr. Vaughn, and agreed to by him when he testified that influenza pneumonia could not have been the cause of death. In respect to all these circumstances it must be remembered that they relate to conditions 15 days after

It may

(184 N.Y.S.) death, and after the body had been embalmed, and had necessarily experienced physical and chemical changes by reason of fire and water and lapse of time.

[7] 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 testimony, even though uncontroverted, may be disregarded by a jury. People ex rel. Third Avenue Railroad Co. v. State Board of Tax Commissioners, 212 N. Y. 472, 485, 106 N. E. 325; The Conqueror, 166 U. S. 110, 131, 133, 17 Sup. Ct. 510, 41 L. Ed. 937; Brehm v. Great Western Railway Co., 34 Barb. 256, 273. In People v. Vanderhoof, 71 Mich. 158, 39 N. W. 28, the court laid down the wholesome rule that a party is not obliged to employ rebutting experts, on pain of having the original evidence of experts accepted as conclusive. But it is not necessary in the instant case to go to that extent, or to seek the application of the rule above stated. All the evidence of the defendants has been met and controverted. be that in some details there is no direct clash of witnesses against witnesses, but the witnesses of the defendant do clash with the general tenor of the evidence given by other witnesses, and in some instances by other witnesses of the defendant. In this, as in many similar cases, the theory advanced by one expert witness is unconsciously exploded by the theory advanced by another. There is a clear inconsistency between all the testimony produced by the defendant and other portions of the testimony produced either by the plaintiff or the defendant, and there certainly is a clash between the expert witnesses of the defendant and the circumstances and probabilities disclosed by the evidence.

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 his family in the spring”; the removal of the bed from the upper to the lower part of the house; his anxious solicitude for his sich boys, repeatedly and variously manifested; his purchase for one of them of the thrift stamps on the day he left home; his preparation or 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 con versation in which they engaged; the message to his wife at about i o'clock in the evening; his visit of about an hour with the Wentze family, engaging as he did in ordinary talk, with his usual appearanc —these and other instances which might be mentioned are not indica tive of a man whose mind is obsessed with a purpose to immediately commit a crime which he knew would necessarily entirely change th


status of his life and practically wipe out his existence. It is impossible in an opinion to give a picture of this man's life during the short time preceding the fire, but I do not see how any one can read this record without being convinced that he was thinking the thoughts and doing the deeds of a man impelled by normal and honorable motives. If it be argued that he was acting a part and gauging his conduct to avert suspicion, the answer is that he must have been an extremely good actor to play the part so naturally and with such apparent unconsciousness. But if it be admitted that he may have been dissimulating, it remains a fact that there is no explanation of his crime. A man may desire to abandon his family; he may desire to abandon a business, prospering with a continually increasing prosperity; he may desire to abandon friends and social relations, and all that he has striven for during a life of nearly 50 years; he may desire to wander a fugitive from justice, shrinking in terror from every familiar face or voice; he may even desire to obliterate his identity-all of which is implied by this defense on the part of the insured; but a man never has any of those desires, unless there is some good reason or motive therefor. Without such a reason or motive, the defense rests on no foundation.

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 parner 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 would profit Mr. Bates to the extent of his ill-gotten gains; but probably no one will argue that the profits of Mr. Ensign would be a temptation to him to make the great sacrifice he was required to make. There is small inducement for one to lead such a life as to win the respect and esteem of the community in which he has lived for many years, unless it counts for something against an assault of this nature, based as it is on not a single probability, but on theories and conjectures. The jury, which had the responsibility of deciding this case, refused to be misled by such theories and conjectures, and followed the path of reason and good sense and common experience. I have no doubt that it was the duty of the trial justice to submit this case to the jury for their determination, and I am equally clear that the verdict should not be set aside as against the weight of evidence.

(184 N.Y.S.) 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.

WOODWARD and KILEY, JJ., concur.

JOHN M. KELLOGG, P. J. (dissenting). The plaintiff's cottage, at Lake Charlotte, 12 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 $20,000, 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 the wife and children, $5,000 to the children and $37,000 to his partner, Bates. Seven of the policies were issued prior to February 27, 1918, and all of the seven were accident policies, except three of $2,000 each, taken out October 13 · 1917, with annual payments of $239.28. These seven policies called

for $61,250 in case of accidental death in a burning building, a public conveyance, or passenger elevator; if accidental death occurred other wise, the amount payable would be reduced by $35,000. The tota annual premiums on these policies was $438.08, including the $239.88 on the life policies of October 13, 1917, or $196.20, if that premium is excluded, and the total annual premium on all policies outstanding a the time of the fire was $2,279.23.

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 bene ficiary was changed July 15th to the wife and two children. April 1918, a life policy of $10,000 was issued, his estate being the bene ficiary; June 28th the beneficiary was changed to the partner, Bates May 4th a joint policy was issued upon the lives of Ensign and Bate for $15,000 for benefit of the survivor. On July 6th an accident polic for $5,000 was issued, payable to Bates, with double indemnity in cas of loss in a burning building, a public conveyance, or a passenger ele vator. On August 16, 1918, a life policy of $5,000 was issued to h estate; on October 24th the two children were substituted as bene ficiaries. On November 20, 1918, he took an accident policy, with a indemnity for loss of life during the first year of $2,000, payable Bates.

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