82 F. 980 -

980

8.

82 FEDERAL REPOR'l'ER.

SAME-QUESTIONS FOR JURY.

In founded on negligence, whenever the tacts are In dIspute or conflicting, or the credibility of witnesses is involved, or the preponderance of testimony, and wherever the ,fa<;ts admitted or not denied are such that fair-minded men might drnw different inferences from them, it is a case for a jury.
OF RAILROAD COMPANy-SAFETY OF

,. MASTER AND SERVANT-NEGLIGENCE ROADBED.

It is the duty of a railroad company to provide a safe track and roadbed, {',nd ,not to expose its employes to any perils or hazards agD,inst which they may be guarded by proper diligence.

5.

SAME-DEGREE OF CARE REQUIRIi:D.

l'he {legree, of care required from a railroad company in respect to the condition. a.nd equipment of' its tracks and rO,adbed is to be measured by the exigencies of the situation, and will often depend upon the situation of the road and the topography of the ground.

'

6.

SAME-ASSUMPTION OF RISKS.

Employes of a railroad company whose road runs through a land of steep grades assume greater risks than if upon level lands.

7.

SAME-EvIDENCE-QUES'l'ION FOR JURY.

Plaintiff was injured by the derailment ot a train at a sharp curve at the foot ot a steep grade. 'It appeared that there had been previous accidents at the same place from the same cause. Thme was evidence that a guard rail at that point would be a great safeguard. Held, that a question of fact was presented for the jury, whether plaintiff was subjected to any increased or unnecessary danger through lack of some appliance which would have prevented the derailmeilt. The happening of a railroad accident does not of itself prove negligence, but, where it reveals defects such that ordinary diligence and care would have discovered and prevented them, the company cannot be free from the imputation of negligence in failure to adopt some safeguards or preventive remedies in proportion to the imminency of the danger.

6.

SAME-PRESUMPTIONS.

9.

SAME-NEGJ,IGENCE-ACCIDEN'f.

If an injury is the combined result of accident and negligence, the fact that the contributing cause was pure accident would not exonerate a defendant, it guilty of a want of ordinary care by which the result of the unavoidable calamity might have beeil essentially mitigated. Goff, Circuit Judge, dissents generally on the facts.

In Error to the Circuit Court of the United States for the Western District of North Oarolina. F. A. Sondley and Theodore F. Davidson, for plaintiff in error. defendant in error. George F. Bason and Charles Price, Befure Mr. Chief Justice FULLER, GOFF, Circuit Judge, and BRAWLEY, District Judge. BRAWLEY, District Judge. It is difficult to mark with prC''';sion the exact line which separates the functions of the judge from the functions of the jury in actions of negligence; for this being a mixed question of law and fact, and the terms by which it is usually defined having a, relatiVe significance, the rule requiring judges to decide questions of law, and juries to decide questions of fp-C't, is perplexed with subtleties when applied to the special circumstances of each particular case. When the facts are undisputed, and such that all reasonable lllindl;!' must draw the same conclusion. from them, it is clearly the duty ,of the judge to say, as matter of law, whether or not they make a case of actionable negligence; but such is the in-

PATTON V. SOUTHERN RY. CO.

981

firmity of the human mind, and such its idiosyncrasies, that minds equally honest may sometimes draw different conclusions from the same facts. In all such cases, and wherever the facts are in dispute, it is as clearly the duty of the judge to submit them to the jury; for the law holds that 12 impartial men, applying their separate and varied observations and experiences of everyday life to the decision of questions of fact, are more likely to reach a correct conclusion than a single judge; and this must be so, if the jury system is worthy to be preserved. The courts have long since abrogated the doctrine that a mere scintilla of evidence from which there might be a surmise of negligence is sufficient to carry a case to a jury, and have adopted the more reasonable rule that in all cases there is a preliminary question, which the judge must decide,-whether, granting to the testimony all the probative force to which it is entitled, a jury can properly and justifiably infer negligence from the facts proved; for, while negligence is usually an inference from facts, it must be proved, and competent and sufficient evidence is as niuch required to prove it as to prove any other fact. The simplest definition of "negligence" is, absence of due care under the circumstances. This seems easy of comprehension, but when one attempts to apply it to a particular case the inherent vagueness of tble terms "due care" and "reasonable prudence" becomes apparent; for there is no fixed and immutable standard by which to measure duty in the varying and verse transactions and happenings of life, and what may be due care in one condition and relation is the want of it in another. A process of ratiocination, therefore, becomes necessary,-comparison and deduction. When this comes into play, new difficulties arise, from the distinctive individualities, peculiarities, and anfractuosities of the human mind. Of all the reported cases Wherein judges have granted nonsuits or directed verdicts in actions of negligence, there are few where other judges, equally conscientious, might not have discovered some fact which would be considered rightly capable of producing a different impression on other minds, and therefore properly cognizable by a jury. One clear thread seems to run through them all, and that is that in all actions founded on negligence, whenever the facts are in dispute or conflicting, or the credibility of witnesses is involved, or the preponderance of testimony, and wherever the facts admitted or not denied are such that fair-minded men might draw different inferences from them, it is a case for a jury, and a case should not be withdrawn from the jury unless the inferences from the facts are so plain as to be a legal conclusion. In the case now under review the essential facts are few and undisputed. It is in attempting to draw inferences from those facts that we are plunged into a sea of uncertainty, where there is no chart directing to an infallible conclusion. A learned and conscientious judge, in dismissing the complaint, has, in effect, decided that no inference of negligence could rightly be deduced from these facts. It was his duty to so decide if the case was so plain that he would have been impelled to set aside the verdict as one rendered through prejudice, passion. or caprice. It is equally our duty to review the correctness of his conclusion.

982

82 FEDERAL REPORTER.

,The a(jcident out of which the action grew occurred near Melrose, on tM Asheville & Spartanburg Railroad, between 3 and 4 o'clock in the morning of October 10, 1894. The plaintiff was the conductor of a freig-ht train, and, left Asheville a little after midnight with a train of 16 loaded cars, arriving at Saluda about half past 2 o'clock. The rules of the company required the conductor to go over his train with,the engineer at Saluda, and to inspect the brakes and appliances. A helper engine is kept at Saluda to help trains up and down the grade. It was usually employed in helping trains up the grade, 'but could be used'in going 'down, if required. It was not manned or fired that morning, and the conductor, not deeming it necessary, did not ask for it. Between Saluda and Melrose, the first stationS miles to the east, there is a very steep 240 to 260 feet to the mile. For a half mile after leaving Saluda the train was kept under control. After that the brakes failed to hold, the train got beyond control and rushed down the mountain side at a terrific speed' past Melrose, the foot of the steep grade, and was wrecked at a point one-half mile below where there is a sharp curve, and the plaintiff received injuries which 'necessitated the amputation of his leg. It is impossible for any fair-minded man to say with certainty what caused the trait to get beyond control. There was evidence that some of the brakes were found defective on the arrival at Saluda, but they were repaired, and the conductor evidently concluded that his train was in a safe and suitable condition to make the descent; for, having the right to demand the assistance of the helper, he did not ask for it. In the opinion of the presiding judge, he "was a man of intelligence, of good habits, of experience in fhe management and movement of trains, perfectly familiar with this steep grade on which the wreck occurred, and its dangers." The cause which led to the train getting beyond control may therefore be said to be inscrutable. We do not find any proof of such negligence on the part of the company in not providing safe machinery and appliances as would sustain a verdict against it. Nor is thert· any proof of such contributory neQ'ligenee on the part of the plaintiff as would prevent his recovery if negligence on the part of the company had been established. The best machinery that can be provided will sometimes fail to respond to the demands upon it, as the most careful of human beings will sometimes omit due preeautions, Inattention and accident are incident to human affairs. This being the obvious conclusion of all human experience, it is a duty to provide against such contingencies, and the omission to make such protision may be justly regarded as negligence. Whether there was such omission of duty in; this case is the only question to be considered, for there is no sufficient evidence of negl1gence as to the cars and brakes and other appliances. In view of the testimony that accidents of this nature had frequently occurred at this very place, and in the very manner detailed here; that it was an extremely steep grade,-a dangerous place, where accidents were likely to occur,-we hold that it was an obvious duty of the defendant company, not only to take every precaution to prevent such accidents, but alflo to provide against the consequences thereof, and to minimize the

PATTPN V.

BY. CO.

983

dangersllkel, to flow therefrom, if they could not, in the nature of things, be altogether .prevented. As to whether that could be effectually accomplished, we express no opinion. That seems to us peculiarly a question of fact, to which a jury should respond under such·instructions as t'he oourt would properly give. The testimony in this case showed that about one-half mile from the foot of the. steep grade there was a sharp curve, where the train was derailed, and that there was no guard rail at that curve. A witness who claimed to have had 20 or 25 years of experience as a railroad constructeI', and one who had been a section boss for 16 years, testified that a guard rail upon SUch a curve would be a great safeguard; that guard rails are used upon a great many railroads; that they have a tendency to hold thefiange of the wheels on, and to prevent their leaving the track, and as such they are a great protection. If this testimony is to be believed, it is impossible to resist the conclusion that the absence of the guard rail may have been the cl;l.useof the derailment. That it is the duty of a railroad company to provide a safe track and roadbed, and that its employes should not be exposed to any perils or hazards against which t'hey may be guarded by proper diligence, is a proposition which cannot be disputed; and the degree of care is to be measured by the exigencies of the situation, and will often depend upon the situation of the road and the topography of the ground. Persons employed upon a road such as this uu.doubtedly assume greater risks than upon level lands, but on the other hand the degree of care and prudence in the construction of a track through mountain ranges varies with the circumstances, and what might not be a faulty construction upon the level would be so in a land of steep grades and sharp curves. Engineering questions should not be left entirely to the varying and uncertain opinion of juries, but the well-established rule as to the duty of a railroad company to use due care and skill in the construction and maintenance of track and roadbed cannot be abrogated. There is a common knowledge, which may be gathered from the experience and observations of everyday life, which, while it may not outweigh the opinion of competent engineers, is entitled to be considered in connection with it; and, where previous accidents at the same place from the same cause had directed attention to a source of danger, it seems to us t() present a question of fact, for the determination of a jury, under proper instructions, whether, under the circumstances of this case, the plaintiff was subjected to any increased and unnecessary danger by reason of the failure of the defendant company to provide a guard rail, or some other appliance which wouldhave prevented t'he derailment. It may be that the company might show that a guardrail would not answer that purpose, but that is a matter of defense. A railroad company, in relation to its servants, is not bound to adopt every new invention which may lessen danger. If it keeps reasonably abreast with improved methods, its servants must determine for themselves whether they will encounter the hazards incidental to the service. Nor can it always be said, after an acci<;lent has occurred, that it ought to have been anticipated by the use of some special device or precaution not in common use. The happening of an accident does not of itself prove negligence, but,

984

82· FEDERAL REPORTER.

where it reveals defecfs·of such character and of such long standing that ordinary diligence would have discovered and ordinary care have prevented them, a company cannot be free from the imputation :of in failing to ad{)pt some safeguards or preventive remedies pr{)portioned to the imminency of the danger. If the inj ury is· the combined result of accident and negligence, the fact that the contributing cause was pure accident would not exonerate a defendant, ifguiltyo'f a want of ordinary care, by whidh the result of the· unavoidable calamity might have been essentially mitigated. Our ree1lrds show another case at this term where a train was derailed at this same spot, and the testimony showed that accidents bad been frequent there. Mr. Justice Field, in District of Oolumbia v. Armes, 107 U.S, 525; 2 Sup. Ct. 845, says: "The frequency of accidents at a partiCUlar place would seem to be good evidence of its dangerous character. At least, it is some evidence to fuat effect." The testimony of Corpening, a railroad builder of over 20 years' experience, was that a guard rail at the curve would have been a great safeguard,and would have tended to keep the train on the track. The testimony of Owens, formerly a section boss, of 16 years' experience, was to the same effect. The case, therefore, does not seem to us to fall within the rule above stated, in that there was some testimony from Which, if believed, a jury might have fairly inferred that the company was negligent in not providing guard rails at the curve. "It is well settled," says Mr. Justice Brewer in Railroad 00. v. Powers, 149 U. S. 45, 13 Sup. Ot. 749, "that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them." "If fair-minded men may draw different inferences," says the court in Railroad 00. v. McDade, 135U. S. 572, 10 Sup. Ot. 1049, "no fixed standard in the law by which a is enabled to arbitrarily say in every case what conduct shall be reasonable and prudent," says Mr. Justice Lamar in Railway 00. v. rves, 144 U.S. 417, 12 Sup. Ot. 682. "Where the inference to be drawn from the facts is not so plain as to be a legal conclusion." 'Railroad 00. v. Egeland, 163 U. S. 93, 16 Sup. Ot. 975. "There can be no doubt, where evidence is conflicting, that it is the province of t'he jury to determine from such evidence the proof which constitutes negligence." Mr. Justice White in Railroad 00. v. Pool, 160 U. S. 440, 16 Sup. ot.339; Railroad 00. v. Stout, 17 Wall. 664; Jones v. Railroad 00., 128 U. S. 446, 9 Sup. Ot. 118; Kane v. Railroad 00., 128. U. So 91, 9 Sup. Ot. 16. Oourts cannot fix, themselves, nor allow juries to fix, an arbitrary standard of duty in any given case.. Nor can it be left entirely to surmise, conjecture, guess, or random jUdgment, whether proper precautions were taken, or whether any precautions would have warded off the result. Nor can the varying and uncertain opinions of jurors be permitted to determine engineering or scientific questions. We express no opinion upon these points. All that we determine is that there was testimony suffident to go to the jury in this case. If their minds are

PATTON V.SOUTHERN BY. CO.

98/i.

properly directed to the precise questions which it is their province to determine, and they are not swayed by e:x:iraneous circumstances, there should be little danger of a miscarriage of j"!1stice. The right and duty of a court to set aside a verdict not supported by adequate testimony, always inflexibly maintained, will suffice to correct an occasional abuse. Judgment reversed and case remanded, with instructions to grant a new trial. GOFF, Circuit Judge. I am unable to concur in the conclusion reached by the court in this case, as in my opinion the judgment rendered by the court below is without error. After t'he plaintiff had offered his testimony to the jury, counsel for the defendant, without offering any evidence, moved the court to direct a verdict in favor of the defendant company. In disposing of the motion the trial judge said: .
"Can the plaintiff, under the evidence taken In tbls case, hold the defendant liable for the injury which he received? '.rhe plalntlft: was the conductor of the wrecked train. He is a man of intelligence, of good habits, of experience in the management and movement of trains.-perfectly familiar with t'he steep grade on which the wreck occurred, and wit'h its dangers. As ductor of the train, and in control of It, he had concluded to take it down the grade. He had carefully examined the brakes of the said train, had found the defects In them, and had remedied these defects to his own satisfaction. He knew everything about his train,-as to the number of the cars, their contents, and the weight. He was not obliged to take the risk of the descent,-at least, without protest. The brakes proved insufficient. The train ran away. The plaintiff took the risk at his own will, and must take the consequences. If the defendant is liabie in a case like this, it is liable because its agent took a loaded train down this dangerous grade with insufficient protection. Now, who was the agent of the railroad company in charge of the train,-governing its movements? The plaintiff Wll.S. If the defendant company is liable, it is liable for his negligence."

Giving to the testimony offered by the plaintiff the full weight that it deserves, and drawing from it every just inference proper under the circumstances, I think the court properly directed the jury to find a verdict for the defendant. In cases where the testimony is like that found in the record we are now considering, it is, in my opinion, the duty of the trial judge to direct a verdict, for the reason that the conclusion follows, as matter of law, that the plaintiff cannot recover upon any view which can be taken of the facts that the evidence submitted to the jury tends to prove. Herbert v. Butler, 97 U. So 319; Bowditch v. Boston, 101 U. S. 16; Griggs v. Houston, 104 U. S. 553; Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. 322; Gardner v. Railroad Co., 150 U. S. 349, 14 Sup. Ct. 140; Railroad Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619; Railroad Co. v. Pool, 160 U. S. 438, 16 Sup. Ct. 338. This court, after a careful examination of the authorities bearing upon this question, reaffirmed the position I have just referred to in t'he case of Franklin Brass Co. v. Phrenix Assur. Co. (decided Feb. term, 1895) 25 U. S. App. 119, 13 C. C. A. 124, and 65 Fed. 773. It seems plain to me, if the jury had, on the evidence before it, rendered a verdict for the plaintiff, that it would been the duty of the judge to have set it aside; and, if that be so, certainly he did not efT in pursuing the course that he did. In

986·

. 82 FEDERAL REPORTER.

t'he case of Commissioners v. Clark, 94 U. S. 278, 284, Mr. Justice Clifford, speaking for the supreme court of the United States, said:
"J'udges are no longer required to submit ll. case to the jury merely because has been introduced by the party having the burden of proof, evidence be of such a character that it would W;8Xrant the jury to proceed in finding a verdict In favor of the party Introducing such evidence. Ryderv. Wombwell, L. R. 4 Exch. 39: Decided cases may be found where it Is held that, If there Is a scintilla of evidence in support of· a case, ..the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, tQ:wlt, that before the ev\dence is left to the jury th.ere is, or may be, in. every case, a preliminary question for the ju(lge,-not· whether there is literally no evidence, ·but whether there is any upoolwhich a jury can properly I proceed to find a verdict for the party producing.it, upon whom the burden of proof is imposed. L. R.· 2 P. C. 335; Improvement Co. v.MQnson, 14 Wall. 448; Pleasants v. !<'ant, 22 Wall. 120; Pllrk/l·Y. Ross, 11 Ho:w. 373; Merchants' Bank v. State Bank, 10 WalL 637; Hickman v. Jones, 9 Wall. 201."

I find no evidence in the record that establishes negligence on the part of the defendant. ;Indeed, it is cQIlceded in the opin'iou of the court that there is no proof of negligence, so far as machinery and appliapces are concerned; and I have no right to presume that such ex'isis,and will be offered in case another trial of this cause is had.· The plaintiff was injured in an. accident that occurred on a heavy grade on a mountain section of the defendaut'sroad, as to which, on account of the danger attending the same, special rules arid regulations had been establiS'hedby the company for the move· ment of trains over it. The plaintiff 'was familiar )vith the road, the dangers attending the same, and the regul;ltions to govern it. For reasons that were doubtless satisfactory to him at the time, he ignored the rules, assumed the risk,and took the consequences; and, if there was negligence, if was, in my opinion, On his part. I think the judgment of the court below should be affirmed.

MANHATTAN LIFE INS. CO. OF NEW YORK v. CARDER. (Circuit Cour,t of Appeals, Fourtb Circuit. November 10, 1897.) No. 225.·

1.

LIFE IN,8URANCE-FALSE REPRESENTATIONS.

'I'he term "In good bealth," in a life insurancepoUcy, is comparative; ana an assured is in good health unless affected wltb a substantial attack of illness, tbreaten.lng his life, or with a malady which bas some bearing on the general health.

9.

SAME-AUTHORITY OF AGENTS-NOTICE.

A life insurance company cannot defeat recovery on a polley by proof of restrictions and limitations, of whlcb the assured had no notice, upon the authority and powers of its officers and representatives wbom It had clothed with all the indicia of authority.

In Error to the Circuit Court of the United States for the District of West Virginia. F. B. Enslow, for plaintiff in error. Malcolm Jackson and John H. Holt, for defendant in error.

JrlANHATTAN LIFE INS. CO. V. CARDER.

987

Before GOFE and SIMONTON, Circuit Judges, and PURNELL, DismctJudge. . SIMONTON, Circuit Judge. This case comes up by writ of error to the circuit court of the United States for the district of West Virgilda. The action below was brought by AgnesS. Carder, an infant, by her next friend, against the Manhattan Life Insurance Company of· New York. The cause of action was a policy of life insurance on the life of her father, Albert S. Carder, of which she was the beneficiary. The proceedings began in the state court, and were removed into the circuit court of the United States for the district of West Virginia. The policy of insurance bears date the 17th of May, 1893, and is in the sum of $5,000. It was issued upon the application of Albert S. Carder, which application contained his answers to a large number of questions, giving a very full account of his family and of himself. At the end of his answers is the following warranty and contract:
"(90) It Is hereby warranted that the above statements and answers are full. complete. and true in e"ery particular. and they are offered as a consideration for the insurance applied for. which. however, shall not be forfeited fer allY misstatement made herein after three years from the date hereof. And it is agreed that there shall be no contract of insurance until a policy shall be issued by the company. and accepted. SUbject to the conditions and stipulations therein contained. during the good health of the person to be insured. and the first premium paid thereon. And all right and claim to paid-Up Insurance or reser,e value of any kind. under the laws of any state or otherwise. except as provided in the laws of the state of New York or the policy, is hereby waived and released."

There is no dispute respecting the truth of any of the statements and answers made in his application. The policy was issued and accepted, and the premium was paid thereon. The questions in this case are, was it issued and accepted during the good health of the person insured? If not, was this condition waived? The cause was tried before a jury. At the end of the testimony on behalf of the defendant as well as the plaintiff, the defendant entered a demurrer to the evidence. Plaintiff joined in the demurrer, and the jury, under the instruction of the court, and in accordance with the practice prevailing in vVest Virginia, returned a verdict for the full amount claimed by the plaintiff, subject to the opinion of .the court on said demurrer. The court, having heard argument thereon, overruled the demurrer, and judgment was entered for plaintiff. Exceptions were duly taken and assignments of error filed. The questions in the case, as stated above, ordinarily would have been questions of fact to be answered by the jury under the instructions of the court. The defendant, by its demurrer to the evidence, took these questions entirely from the jury, and placed upon the court the responsibility and duty of them. The decision of the court necessarily was based on the testimony. Our conclusion in the case must be made after a review of the evidence in the record. Oardel', the insured, was a dentist in the town of Huntington, W. Va. He. was approached in March, 1,893, by J. L. Thompson, who was soliciting insurance in the defendant company. Thompson was

988

82 FEDERAL REPORTER.

an appointee of R. P. Woods, who was a state agent or manager of the defendant company, resident of Cincinnati, Ohio. Woods had authority to appoint Thompson as agent to solicit insurance. Thompson induced Dr. Carder to make application for insurance, superintended the preparation of the papers, and had an examination of the applicant made by a physician chosen by Thompson himself. The application went forward, and in due course two policies of insurance on the life of Carder were issued by the home office of the defendant company, and were sent to Woods" from whose possession Thompson received them. When the policies came, Thompson, being engaged elsewhere, sent them to Carder by an agent of his, named Henry. Carder refused to accept the policies. Soonafter, Thompson decided to see Carder himself. To this endhe went to Huntington, called at Carder's office, and learned that he was at his home. Going to the home of Carder, he found him in a bed chamber, lying on the bed in his night clothes, playing with his little daughter. With him also was Dr. Grooms, the physician who had examined him on behalf of the company when he made application for insurance. Introducing the matter of insurance,Thompson urged Carder to accept thi policies. Carder excused himself on the ground that he had no money to pay for insurance, but offered his note. Thompson agreed to accept the note, went out, got a blank note, filled it up, got Carder to sign it, and thereupon delivered to Carder the policy for $5,000. Carder would not accept the other policy. 'l'his was on the 22d of June, 1893. Thompson noted Carder's condition, and came to the conclusion that he was not seriously sick; and, to his inquiry, Dr. Grooms sadd that Carder had a little trouble with his bowels, or something like that, and he thought he would be all right in a day or two. Several physicians have testified who attended Carder, and' they all concur in the opinion that he had a slight gastric irritation of the intestinal canal, a disease not necessarily dangerous, and seldom or never fatal. His complaint gradually diminished, and he got up and about, went to his office, and attended to his business; never, however, apparently being wholly free of the gastric irritation. On the 12th of July, 1893, he took a family dinner with a friend. While there, he indulged in a bottle of beer, an unusual thing for him, and ate heartily of veal, sliced tomatoes, and, watermelon. After eating dinner, he worked, and overheated himself. That night he was taken with cholera morbus, from which he died the next day. This cholera morbus was not the result of his preVious indisposition, although it may have rendered him more susceptible to such an attack. Thompson had said nothing to Woods or to the company about finding Carder in bed when he delivered to him the policy. On the 22d of July he detailed to Woods the circumstances attending the delivery. A day or two after, Woods went to Huntington, and there learned for the first time that Carder was dead. On his return to Cincinnati, the 25th of July. he reported to the company all that he had heard from Thompson, and also the death of Carder. In the meanwhile he furnished to the administrator of Carder blank proofs of death, made a claim upon the administrator for the premium accruing during the quarter in which Mr. Carder died, stating at the same time that it must be either paid then or be deducted

MANHATTAN LIFE INS. CO. V. CARDER.

983

from the sum due on the policy. The note given by Carder tnThompson was collected, and carried to the credit of the company; and a notification was sent out from the office of the company in New York, mailed to Dr. Carder, stating that the premium would fall due the 17th day of August, 1893, or else the policy would be forfeited, and after that the company concluded not to pay the policy. This was the 14th day of August, 1893. The authority of the agents of this company was strictly limited, and this fact was not communicated to the insured. As has been seen, two questions arise under this state of facts: First. Was Dr. Carder in good health when the policy was accepted? Second. If not, was this waived by the company or any agent of it, so as to bind the company? The term "in good health" is comparative. It does not mean in perfect health, nor would it depend upon ailments slight and not serious in their natural consequences. In construing this term in a life policy, we must regard the character of the risk assumed. Looking at it from this point of view, it would seem that a person was in good health unless he was affected with a substantial attack of illness, threatening his life, or with a malady which had some bearing on the general health; not a slight illness or a temporary derangement of the functions of some organ. See C()nnecticut Mut. Life Ins. Co. v. Union Trnst Co., 112 U. S. 257, 5 Sup. Ct. 119. In May, Ins. (2d Ed.) 387:
"Good health does not import a perfect physical condition. The epithet 'good' is comparative, and does not ordinarily mean that the applicant is l'ree from infirmity. Such an interpretation would exclude from the list of insurable lives a large proportion of mankind. The term must be interpreted with reference to the SUbject-matter and the business to which it ]·elated. Slight troubles not usually ending in serious consequences, and so unfrequently that the possibility of such result is usually disregarded by insurance companies, may be regarded as included in the term 'good health.' ..

"The term 'sound health,'" says the supreme court of Michigan in Brown v. Insurance Co., 65 Mich. 306, 32 N. W. 610, "when used in questions in applications for life insurance, means a state of health free from any disease or ailment that affects the general soundness and healthfulness of the system seriously, not· a mere temporary indisposition, which does not tend to weaken or undermine the constitution of the assured." The testimony of the physicians all concur in treating the ailment of Carder as temporary indispositiou, which did not weaken or undermine his constitution. We are of the opinion that, within the meaning of the policy, he was in good health. This would seem to have been the conclusion of the agents of the defendant company. Thompson, who was charged with the delivery of the policy and the completion of the contract of insurance, saw Carder, and talked with him in the presence of his own examining physician. With full knowledge of his condition, he delivered the policy. Woods, a suo perior agent, the general agent of the company, after full information from Thompson of all that had occurred, went on, collected the money due upon the note given for the policy, made demand for the accruing

990

82 FEDERAL REPOR'rER.

premiuDl on the policy, sent on and saw to the preparation and the of the proofs of loss, and seemed to entertain no other idea than that the policy would be paid in full. These agents were clothed with all the indicia of authority. No notice of limitation on that authority was ever given to or known by the insured or his beneficiary, so far as the record discloses. Under these circumstances, the policy was properly accepted, and became a binding contract. The conclusion thus reached renders further discussion of the second point unnecessary. The judgment of the circuit court is affirmed, with costs.
CULP v. UNITED STATES.

(Circuit Court of Appeals, Third Circuit.
No.4.

USE OF MAILS TO DEFRAUD.

October 25, 1897.)

TIle act of March 2, 1889 (25 Stat. 873), entitled "An act to punish dealers and pretended dealers in counterfeit money and other fraudulent devi('es for using the United States mails," and which amended Rev. St. § 5480, by inserting therein an enumeration of various ways or devices for using the mails to defraud, did not repeal this section, or narrow its scope to the specific schemes and artifices so specified; and an indictment describing a scheme to defraud by sending letters requesting the persons addressed to sell and ship to defendant articles of merchandise, for which he did not intend to pay, states a punishable offense, under the statute.

In Error to the District Court of the United States for the Western District of Pennsylvania. This was an indictment against J. A. Culp for using the mails to defraud. Defendant, having been convicted in the district court, sued out this writ of error. James Scarlet and J. H. McDevitt, for plaintiffs in error. Samuel B. Griffiths, for defendant in error. Before ACHESON and DALLAS, Circuit Judges, and KIRKPATRICK, District Judge. ACHESON, Circuit>Judge. The indictment charged the defendant with having devised a scheme to defraud, to be effected by opening communication with certain named persons by means of the postoffice establishment of the United States, and that in executing such scheme the defendant deposited in a post office of the United States certain letters, addressed to said persons, to be sent and delivered to them by thepost·office establishment; and the fraudulent scheme particularly set out was this: That, intending to defraud the persons to whom said. letters were addressed, the defendant therein and thereby requested the persons addressed to sell and ship to him certain arti· cles of merchandise, for which he agreed to pay the shippers, whereas, in truth and in fact, he did not intend to pay for saidi articles, but intended fraudulently to appropriate them and convert them to his own use without paying therefor. There is no doubt that the indict· ment plainly sets out a scheme to defraud (Evans v. U. S., 153 U. S.