In all of the life 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 for a payment by Ensign of $966.76 per year in premiums, a large sum to be paid by a man whose annual total income, as we shall see later, was only $1,300, and who had himself, his wife, and two children to support. He paid a house servant.$4 per week; her wages and the premiums payable by him would pretty well exhaust his annual income, in addition to which he would be charged the half of the $1,322.60, which Bates says the firm was to pay. The plaintiff knew that the husband had insurance, but did not know of the amount, and had no information that any of it was for the benefit of Bates. The insured was upwards of 49 years of age, weighed 190 pounds, was 5 feet 9 inches high, a fairly strong, rugged man, with broad shoulders, well proportioned, and was in good health. The fact that he had so recently been accepted for insurance speaks for his good health. He had spent the morning of the fire in putting double windows upon his house at Hudson. He had lost no teeth; most of his upper teeth, however, were crowned with gold. He, his wife, and two children lived oves the undertaking office. His family relations were good.

Ensign and Bates had a morgue in the office building and a vault inthe 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 30 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 line," had begun the sale of automobiles, and had outstanding notes, business paper, on that account, of $9,000, and it owed $4,700 in other indebtedness, apparently, in addition to the mortgage. Ensign personally owed about $800, which embraced several notes in the bank due to tradesmen. Some of the tradesmen's notes had been running for some time, and had been renewed from time to time, with small payments thereon. The firm had been in business since 1907 and was fairly prosperous. Neither Bates, Ensign, nor the firm paid any income tax. There is no evidence that either partner ever drew from

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the firm anything aside from $25 per week, from which it would result that that sum was Ensign's total income. After the fire Bates paid the plaintiff, as Ensign's widow, $6,300, as he says, for Ensign's interest in the business, which, of course, was subject to the payment of his debts. This represented the return of any capital originally put in the business by him and one-half of the profits of the business since 1907. 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 7 o'clock, consisted of two or three pieces of sausage, five or six pancakes, bread and butter, and coffee. His luncheon, about 11 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 8 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 gave a 25-cent piece for the milk, and received in change a 10-cent piece and 5 pennies; he put the change in his pocket, and said he would go to the house and eat his supper. At 11:30 at night the building burned, and he has not been seen alive or heard of since.

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 4 inches from back to front, 4 inches from side to side, and 2.7 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 lying over the edge of the pan. Some time 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 6 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 débris 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 2 or 3 feet of it. The foot of the bed reached out into the room toward the stove. The chimney had fallen inside the room, and 8 or 10 bricks were found near the foot of the bed. The side of the foot of the bed near the corpse was bent down some, apparently by the fallen brick. The iron pipe of the bed was warped some; the bed and springs were blackened, otherwise were in good condition. The dead body lay near the bed and substantially parallel with it; the head was towards the door. Bates infers that, when the corner of the foot of the bed fell down, the body rolled off the bed upon the bed of coals; but, inasmuch as the bed was otherwise intact, it would hardly seem that the slight accident to its foot would have dumped the dead body upon the bed of coals.

It will be noticed that the absence of the face, 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 bones 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, jawbones, 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 débris 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 50 per cent. of the cases it is correct within a fraction of a centimeter, that in 30 per cent. it varies not to exceed an inch, and in 20 per cent. there may be a variation which will reach, in some cases, to 3 inches. The length of the femur here is undisputed. Dr. Vaughn, the plaintiff's expert, reckoning from it, gave the height of the dead man as between 71 and

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72 inches, or 5 feet 11 inches or 6 feet; but upon cross-examination, when the computation was challenged, and he was informed that the defendant's counsel made it 72 inches and a fraction by the same formula, the court asked him to verify the figures. He stated that he used the arbitrary formula of Roulett's rapid method, but conceded that it had not been adopted-meaning, I infer, that it was not in general use-in this country. Upon going over his figures, he gave the result as 72.52 inches. The defendant's expert gave the height as 73.3 inches. According to the formulas given by these witnesses, 22 centimeters are figured as an inch. If we take the substantially correct ratio, 2.54, Dr. Vaughn's evidence makes the dead man 5 feet 11% inches and the defendant's figures about 6 feet and 1⁄4 inches. The respondent's brief is clearly in error in computing that 71.385 inches make 5 feet and 9.45 inches. The height of the deceased precludes to a reasonable certainty the conclusion that he was the insured. The computations being made by both experts from formulas, we are not justified in changing them, and in using the 2.54 instead of the 2.50, which seems to be a part of the formula; the difference probably being compensated for by the other figures. Dr. Vaughn speaks of his formula as the "rapid method."

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 3 o'clock, and returned there about 6 o'clock, put it in the barn, and drained the water from it. He came back between 7 and 8 to telephone and get the milk. Upon leaving home, Ensign told his wife that he would be back about 10 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 6 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 that before the funeral he had thrown an embalming fluid upon the body and with a trocar had jabbed it into various parts of the body. At the autopsy Bates made no suggestion that any embalming fluid had, at any time, been used. Dr. Schultze and two representatives of the company swear that Bates had stated to them that nothing had been done to the corpse and that no embalming fluid had been used. He denies this, but Bates is deeply interested in the litigation. It is urged that his connection with the business, and the practical impossibility of taking a corpse from the morgue or the vault without his knowledge, may explain the large policies in his favor. Dr. Schultze swears that there were no marks of a trocar. Evidently, if there had been such marks, they would have been noted in the autopsy; it having been made by physicians who represented both sides of the controversy. It is more than probable that an undertaker, bringing a corpse before doctors for an autopsy, would state to them, if such was the fact, that he had embalmed it, and the method thereof. Concededly Bates made no such statement. His evidence as to putting embalming fluid upon the corpse evidently was suggested by the report of Symners.

Whether or not the body was embalmed was a very material question. If a corpse was taken from the morgue or the vault to the cottage, it probably would be one that had been embalmed. The old wood stove in the cottage had some of its plates bulged out and broken, but none had melted. That fact is seized upon as a suggestion that the overheated stove broke open and set the building afire; but it seems incredible, with the head of the bed within 21% feet of the door, and with windows near, that any person on the first floor could not have made his escape.

Bates went to the cottage about a week before the fire to get Ensign. The road from the state road to the cottage, about 2 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 2 o'clock, Bates, about 4 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 the Vim truck, so that he could use it. According to Bates' theory, for some time at least before that day, the firm had no conveyance ready for a night call. The car with the chains on it was first used in going to the cottage after the fire.

At the autopsy Dr. Schultze represented the defendant and Dr. Vaughn the plaintiff. There were present several other doctors and others. Dr. Vaughn 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 30 blocks, varying in size from a half inch square to nearly an inch square in extent, were taken. Dr. Vaughn 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 Allied 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. Vaughn 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 or- ' ganizing 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 pleura are deeply injected.

Kidney: One part of the kidney shows widespread 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 subacute productive glomerular nephritis.

Microscopic examination of the liver, muscle tissue, and spleen shows extensive necrotic changes.

"[Signed] Douglass Symners, Director of Laboratories."