DDERAL BEPORTBR,
vol. 41..
SMITH fl. DAVIDSON. (c-trcwtt
C?ourt. D. Minnesota.
,December Term, 1889.)
EVIDENCE-ADMIIISIONS I;N SUPERSEDED PLEADINGS.
Where an amended answer has been flIed as a substitute for the original, the latter, v,erifledby defendant's attorney, is inadmissible in evidence as an admission by defendant of the facts therein stated.
At Law. On motion for new trial. Davis, KeUogg & Severance, for plaintiff. ' Lusk & Bunn, for defendant. by oneofthe for the defendant,tO be offered in evidenoe!lsan by ,the defendant of the facts therein stated. An amended answer been filed to, ,ta}re the viace of the original, it should'pave been' from the jury. The ruling of the court, having, ,been properly excepted to, the defendant is to a new such trial grltnted. Costs to abide the event of the SUt.
NJJlLSON;J.' , I think the court erted in permitting the original
EGGENBERGER fl. GUARANTEE MUT. ACCIDENT ASS'N. ".' ' . ,',
(Circuit Oourt, AccmENT
D. Minnesota. December, 1889.) Oll POLIOY. '
" ' Under certificate of accident insurance, providing that it "shall not extend to i 'i,)ljuJ;ies of which there is no visible mark on the body of the insured, " nor to death ,resultinA' from various causes, the cOW{lany is liable, in case of accidental 411ath, ,;, though there was no visible mark of the Injury ,on ,the body. ' The occupation of a wood-chopper being .classed as more hazardous tban that of a stationary engineer, in which latter class, deceased was and he having been',fata,'UY in,J,U,"red w,,lIile'tlhOPPingflre-W,OO,d for bis own use, the question for the jury is whether he was injll;red while, an actpecllliarly ,embraced in · tlie 'occupation of ,a wood-chopper, !Ind n9tln that of stationary I!on,d" '!"'Dot 'simply wbether he was engaged tempbrarily in an occupation more hazardous' < ' tb,a,n ot , :, ,) , ' ' ,
a
'tt Law., ;"$tle1: & ,How; .. · · >,
for newtrilil.\, for plaintiff'. I '. . _ . (
"This actlo,n was upl:m. .the
,to plaiQtift"a Py ac9Ident, to ber. ,
external, VIOlent, and accIdental means, and If death should result from such injuries alone, and within 90 days, agreeing to pay the plaintiff 83,000. The occupation of the plaintiff was stated in the application
EGGENBERG& ,. GUARANTEE MUT. ACCIDENT ASS'N.173
as a stationary engineer.. ,The insured died in March, 1888, while he was chopping and getting some fire-wood for his own nse, in the woods some six miles below his residence. The place where he was at work was slippery, because of the sleet aud hail that had fallen. Thetestimony of the companion with him is that he split a piece of cord-wood which he had cut, and while he was splitting the wood, and throwing it one side, he was heard by his companion, who stood near him, to fall, and was found lying across a log unconscious, and he died within a minute. There was a verdict for $3,000. the certificate it was provided that the insurance "shall not extend to injuries of which there is no visible mark pn the body of the insured, nor extend to * * *.. accidental, * * death, resulting" from apJ>ear by any evivarious causes, It is claimed that because it did dence whatever that there Was any visible external mark on the body of the insured, of the injury which was alleged to death,that the court should have directed a verdict for the defendant. of the my construction of the certificate, 011. the .Upon this trial, was that the "visible mark upon the body oftheinsured" was only required to exist in cases of bodily injuries which did not result in de\l.th, and I am sustained in this ponstruction by the Mall<Yry v. Insurance Co., 47N. Y. 52; PaUl v.lnwura:nce Co., 45 :Ilun, .313; McGlinchy v. Ca8'l.lJ1,lty (h., (Me.) 14 AU. Rep. is,. .,: But it is claimed thaHhe insured was fatally injured whiladoing an act pertaining to an occupation (to-wit,a wood-chopper) classed by the association as mQre hazardoi.ls than the occupation under which this certificate is issued, and that the insured could, in no event,recover more than th.e indemnity of the class in which such more hazardous occupation is classified. In the body of the certificate is the following'proyision: "The insured men1.,ber is required to notify tary of the association immediately and in writing of any change 'in' the qccupation under which this certificate and insurance aregrante<i, if the insured member be latally injured, while doing or performing any act or thing pertaining to an occupation classed by thisassQciatioh' a's more hazardous than the occupation under which this certificate is issued, the .insured member, or his beneficiary, as the case may be', shaH be entitled only to the indemnity of the class in which such more hazardous occupa.tion is classified by this association." Thebccnpationof a. wdodchopper is found in class 5, and that of a stationaryengineerin class 3; rated as less hazardous. While it might be difficult, in many cases, to say what acts or things are properly incident 'to one occupation which are not so to any other, still I think it should have been submitted to the juryto determine, from theev'idence, whether the act or'thing which the insured was doing or performing, aUhe time of his death,imoreprop.. ady pertained to the business of a wood-chopper, and did not belong to hisow.n ;occupation. The court in its charge to the jury, while it fully instructed. them to determine from the evidence wbether; under the cumstances, and within the terms ofthepolicy,Jat the time of death; theiQsure<t was engaged telIlpotarily in an.occu.patiohmore bamrdous
*'
J!'EDERA.n: RIllPORTEB', ,
ftnarlithht 'Of iI:stlitioDliry 'enginedz,;'iit" fuiled 'to instructtbem fully, and sUbmit ,t6 them the distinct question 'to be" determined)i whether the insured' wa:l!l,futally injured while' performing an aot peculiarly embraced in the bce\ipation of a wood-chopper, and not in that ofa stationary engineet; ia'D'd fOT this reason I think that a motion fora new'trial should be 'grailWd; 8.nd it is SO ordered. Costs to abide the event'. [' (Ji .. :
,-
"
" ,
BOYD ',', ", , i
et ai. ,.
HANSON.
Court, D·
February
'L " . , ,
"Where grain ,brokel's,employed by: 1II dealer to buy and ,sell wheat on future delivery. wflte .tihlil dealer tlJat a cpnyract, wlJ,ich he has for can be changed to Junl! tQ wh,ich letter t,he makes no reply, ,and brokers so change "theaontract,'sending a statement.to the' jle&ler showmg such change to have been tlle .repeipt, and retention, of, the statement by the dealer without objectioll aJi1oullts'toll. 'ratitJ,patioll of the brokers' IAOtin malqng the change. ' :t. B.utIl-GAntUI(Q FI1rtrnES.· "", ' ',' ,,;' r ' ,If, In ,Clob.tr811te,for.the Sal,e otw,heat, :to be delivered in the ,fature, the parties, ' bave no intention an ac1/ual, Sll,bI:l and delivery, but intenn to settle at the time fixed for delivery merely by paying thedilference between the contract and ,aontract is a wager,and. is illegal, and advances I1lade under . ,the , tt oannot reQovered. , " , · " B. ,TO REcovER In an action"alfainst a dealer by broken' employed, by him to buy and 8811 wheat ': for made by them on hisBCCOunt, where the contracts on' their face EIre for actual sale and delivery, the burden is all defendant, if he attaclta,tbeil' lilA"ality on thegroulid that there WEIS no intention of actual de. ." ,; . . " ,' ..' ' " "I:t iUch for the de81el'. enter Into bona. Me contracts for actual sare and,dellvfIlry,'and afterwards, ,at his request, insteailJofdelivery, settle the 10S88$" a,nd, difference between ,the ,contract market, prce, EIre 'entitled 'to ,recover from the dealer the amounts so the ilealer himself ,maY lrave;had no intention to dellver'the wheat. " , "" " '".; " " ', ,' · , ' , " i '. 'ThacontrllcitiJthe!nselvesare not conclusive evidence of the intention of the par, 'ties, buttheir'int8ntiOD may be gatMredfMm all the circumstances attending the :01 Clpptraets,andthe COIldUOt ()f the parties with to them. t' "S,UllI!. , " " " , " ' " , " ..
AOTS-RATIFiOATION.'
'
.J ;, t i J',
At Law.. :'Wm.S.
I; ,
!?
JamesE. ;SoydandSamuel Boyd against TheoadvaD;Ces ,and .commissionsH " , 'M; Kirtfln, and, ,Q':Brien O'Brien, for plaintiffs.
/This is an action in which the plaintiffs advances'on accountof,the defeudalit,rnade 8t 'his-:requesti,iJnd,also foragreedcO'Ominissions for servicegrendered on the years 1888 and when 'this leged ·indebtedneSs' Iiacrued, ,were· brokers' and commission merchants, 1 doingbusineas in,theC,itY of "Chicago, and' connected with the ofoCommereeof that city, where:,tb.ey boqght and sold for persons who} drNELSON,i;Ji-';