ÆäÀÌÁö À̹ÌÁö
PDF
ePub

(184 N.Y.S.)

It is idle for Dr. Vaughn to say that the report relates only to a particular section of the lungs. The report was made upon all the sections taken, and in every substantial respect it agrees upon those subjects with the testimony of Dr. Schultze, who made a microscopical examination of all the blocks taken from the organs or other parts. A layman, with an ordinary dictionary, from Dr. Symners' report, can satisfy himself that the corpse was not the well, vigorous, broad-shouldered, rugged Ensign, who weighed 190 pounds. Dr. Schultze makes clear that it would have been impossible for the man to be around, performing the acts which Ensign was shown to have performed on the day of the fire, and clearly shows that the man died from acute broncho-pneumonia, from influenza.

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. Vaughn, the only expert appearing as a witness for the plaintiff, made no mi croscopical 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 8 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. Vaughn, plaintiff's expert, concedes that the man had been suffering from influenza pneumonia for a week or more. He says "it is a typical case of influenza pneumonia," and that it was well along, "because it was organized." But he infers that it was resolving pneumonia, and localized, and therefore it would have been possible for the man to be up and around. While he says the man did not die of influenza pneumonia, we have the following questions and answers which seem to be quite conclusive:

"Q. Now, Doctor, if with this report here as it is to-day, with the sections that you delivered to him, then the individual had a well-organized infectious pneumonia in all parts of the lungs? A. He did not. Q. I say, if we assume that Dr. Symners covers all sections? A. Yes; if he covered all the sections of the lungs, that would be present. Q. Then the individual had a wellorganized infectious pneumonia in all parts of the lungs? A. If he had that process in all parts of his lungs, he would never have reached that far in the changes. Q. I say, if we assume that from his report on all of the

sections that he had received from you, then the individual here had a well-organized infectious pneumonia in all parts of the lungs? A. From which the specimens were removed; yes."

As he views it, the reports do not indicate any cause of the death, and he does not give an opinion as to the cause of death, except the general statement that it was not due to influenza pneumonia. Where Dr. Symners speaks of a part of the kidney showing widespread necrotic changes, and that the liver, muscle tissues, and spleen show extensive necrotic changes, Dr. Vaughn says "necrotic" means death changes, but interprets the changes spoken of as changes after the death of the man. Dr. Symners knew that the man had been dead for days. He was making a microscopical examination of certain parts submitted to him, and it would be idle to say that those parts were then dead, when in fact all parts were dead. Manifestly he meant by "necrotic" the death of tissues while the person was alive"the death of a circumscribed piece of tissue"; "mortification or gangrene"-and that these conditions preceded the man's death. Evidently it was safer for the plaintiff to let its expert explain what the microscopist meant than to have him present. Dr. Vaughn concedes that the condition of the lungs, the blood clots, the pleura, as mentioned in the report, result from inflammation or infectious disease. I think Dr. Schultze's testimony, taken in connection with the report of Dr. Symners and the weak explanation of it by Dr. Vaughn, completely demonstrates that the man died of acute broncho-pneumonia, from influenza, or at least was so suffering from it at the time of the fire as to preclude the possibility of Ensign being the dead man. Dr. Schultze gives the only plausible cause of the death.

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 3 o'clock, and presumably, at that time of year, had a fire in the wood stove from that time to bedtime. 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. Vaughn, and infers that that was the blood delivered by Dr. Vaughn to Dr. Symners. Dr. Vaughn 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.

(184 N.Y.S.)

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 taken place before the building burned. But it is unnecessary to discuss that question, as there is no evidence to show that Ensign met his death by that poison. The evidence of the doctors cannot here be reproduced, on account of its great length; but the more it is read on both sides the more convincing it is. We find no substantial evidence by any one that this death was caused by the conflagration, and the plaintiff's expert ventures no suggestion as to the cause of death. It must be evident, with the various organs in the condition as recited in this case, that this man could not, upon the day of the fire, have been around as a well man, doing a full day's work, and eating hearty meals; if, as the plaintiff's expert concedes, he had been suffering from influenza pneumonia for about a week, it is impossible that the man could have been abroad and at work.

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, before 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 criticized, 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.

HENRY T. KELLOGG, J., concurs.

(112 Misc. Rep. 149)

UNITED STATES MORTGAGE & TRUST CO. v. LIBERTY NAT. BANK. (Supreme Court, Special Term, New York County. May, 1920.) Banks and banking 149-Negligence of drawer held no defense to action for money paid by drawee on forged checks.

Where an employé of the drawer forged the names of the payees of certain checks and transferred the checks to a third person, who deposited them to his personal account in the defendant bank, which collected them from plaintiff, the drawee bank, the negligence of the drawer of the checks was no defense to an action by the drawee to recover the amount paid by it to delendant bank.

Action by the United States Mortgage & Trust Company against the Liberty National Bank to recover the amount paid on certain checks. Demurrer to separate defenses sustained, and plaintiff's motion for judgment on the pleadings granted.

Patterson, Eagle, Greenough & Day, of New York City (Carroll G. Walter, of New York City, of counsel), for plaintiff.

White & Case, of New York City (Robert Forsyth Little and Joseph M. Hartfield, both of New York City, of counsel), for defendant.

FORD, J. The plaintiff bank paid to the defendant bank certain checks upon which the names of various payees were forged. An employé of the drawer had come into possession of the checks, perpetrated the forgeries and transferred them to a third party, who deposited them to his personal account in the defendant bank, which collected them from the plaintiff, the drawee bank. The complaint states a good cause of action for the recovery of the amount so paid.

Negligence on the part of the drawer of the checks is set up as a separate defense, to which a demurrer has been interposed, and the recent case of Prudential Insurance Co. v. National Bank of Commerce, 227 N. Y. 510, 125 N. E. 824, is cited as authority for the validity of the defense. That case was originally tried before me. Evidence of negligence of the drawer was received tending to prove that the drawer had or should have knowledge of the long-continued practice of one of its general agents to forge the names of the payees on checks sent to him by their drawer, to deposit them on his own account and then make payment to the original payees by his personal checks. The negligence charged in the defense demurred to here is of a similar na

ture.

In the Prudential Case, as tried before me, the question of the negligence of the plaintiff drawer was submitted to the jury, who found for the defendant drawee, thus sustaining the charge of negligence. The Appellate Division reversed (177 App. Div. 438, 164 N. Y. Supp. 269) upon the ground that the defense was untenable. Upon a new trial before another justice, he directed a verdict for the plaintiff in accordance with the decision of the higher tribunal. The trial court was affirmed as of course by the Appellate Division, and the latter court reversed by the Court of Appeals in a decision which was in effect an affirmance of my own view of the law upon the first trial.

Thus appears the reluctance with which the courts have gone even so far as they did go in the Prudential Case, which merely sanctioned the

(184 N.Y.S.)

interposition of the defense of negligence as between the drawer and drawee. To permit the negligence of the drawer to be set up in an action between the drawee and its immediate indorser, to which action the drawer is not a party, would be an extension of the rule, not only unwarranted by anything in the Prudential Case itself, but opposed to the well-settled policy of the law to guard the integrity of indorsements on negotiable paper passing in good faith from hand to hand and serving beneficently the ordinary purposes of commerce and finance. The motion is granted, and the demurrer sustained, with $10 costs. Motion granted, with $10 costs.

(192 App. Div. 942)

SISSON. State Excise Com'r, v. 134 CASES OF ALE, LAGER, AND DIVERS OTHER LIQUORS (WEST END BREWING CO., Claimant).

(Supreme Court, Appellate Division, Fourth Department. May 19, 1920.) Intoxicating liquors ~250—Proof that bottled beer was for sale does not, warrant confiscation of that in kegs.

Proof that bottled beer was stored and kept for the purpose of sale and distribution in violation of law does not warrant confiscating the entire stock, which contained; in addition to the bottled beer, beer and ale in original kegs and barrels containing 5 gallons or more.

Appeal from Trial Term, Oneida County.

Action by Herbert S. Sisson, as State Commissioner of Excise, for the forfeiture of 134 Cases of Ale, Lager, and Divers other Liquors, of which the West End Brewing Company was claimant. Judgment for plaintiff, and claimant appeals. Reversed, and new trial granted. Argued before KRUSE, P. J., and LAMBERT, DE ANGELIS, HUBBS, and CLARK, JJ.

Timothy Curtin, of Utica, for appellant. Harry D. Saunders, Dep. Atty. Gen. (Julien Scott, of Bainbridge, of counsel), for respondent.

PER CURIAM. While the evidence is sufficient to show that the bottled beer was stored and kept for the purpose of sale and distribution in violation of the statute, that of itself does not warrant confiscating the entire stock. It was only such as was to be sold and distributed in violation of the statute that is required to be confiscated. It was lawful to dispose of the beer and ale in the original kegs and barrels containing 5 gallons or more, and the undisputed proof shows that none of the beer was bottled at the place of storage, but all bottled beer was bottled at Utica.

We think the verdict of the jury is contrary to law and against the evidence, as regards the beer in kegs and barrels, and that the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.

HUBBS, J., concurs in result only.

Judgment and order reversed and new trial granted, with costs to appellant to abide event. The reversal is upon questions of law and also upon the ground that the finding of the jury as regards the beer in kegs and barrels is contrary to and against the evidence.

184 N.Y.S.-3

« ÀÌÀü°è¼Ó »