sufficient to shift the burden of proof,30 but, the decision is by a divided court, and the doctrine of res ipsa loquitur is not carefully considered in the opinion. An explosion of a saw mill boiler, whereby an employee is injured is likewise held not to be prima facie evidence of negligence, and Dickman, J., in the opinion basis his conclusion directly on the ground that no such relation was shown as that existing between common carriers and passengers.31 On the other hand an employee was at work coaling engines, and freight cars were run against the tender and he was injured, and it was held that a presumption of negligence arose from the apparent want of care. 32 Many other cases of interest on account of the peculiar and novel facts presented, or the fine distinctions and close reasoning required in their decision have arisen that involved the subject under discussion. One of the most thorough treatments of the question, in relation to the care required of companies maintaining on poles electric wires, charged with powerful currents, appears in a decision by Brannon, J., and he holds that the fall of such wire from its proper place and the killing of a man thereby makes out a prima facie case against the electric company, 33 but it has been held that, where the head of a tall brakeman standing on a freight car struck against a slackened wire, and it fell and coiled about plaintiff's intestate, who was at work on a flat car twenty-five feet away, and he was dragged from the car and suffered fatal injuries, the mere proof of the accident did not cast on the railroad company the burden of showing the real cause of the injury. 3+ A presumption of negligence against a city has been held to arise from the fact, that the wall of a cistern it was constructing fell, and negligence has been presumed from the mere showing of the fact that a horse was allowed to go at large in a street, 3 6

34

30 Viles v. Stantesky, 83 Ill. App. 398.

31 Huff v. Austin, Ohio Sup. Ct. 21 N. E. Rep. 864. 2 Olson v. Great Northern Ry. Co., 68 Minn. 155. 33 Snyder v. Wheeling Elec. Co., 1897, 43 W. Va. 661. See, also, Suburban Electric Co. v. Nugent, 58 N. J. Law, 658; Thomas v. W. U. Tel. Co., 100 Mass. 156; Haynes, Admr. v. Raleigh Gas Co., 114 N. Car. 203.

34 Wabash, etc., R. Co. v. Locke, Admr., 112 Ind. 404. Mulcairns Admx. v. City of Janesville, 67 Wis. 24. 36 Wasmuth v. Butler, 86 Hun, 1; Dickson v. McCoy, 39 N. Y. 400.

and from a variety of facts which cannot further be specifically mentioned. 87

Evi

To determine whether the doctrine, res ipsa loquitur, is applicable or not, is to determine when proof by the plaintiff of the accident or casualty and no more, is sufficient to raise a presumption of negligence against the defendant and compel it to show that it employed the requisite degree of care. dently no fixed rule for this determination can be framed. Cases are as various in their facts and circumstances as the events of a busy world, and require in their decisions the exercise of calm and unprejudiced judgments. A judiciary able, patient, studious and absolutely unbiased is the great desideratum. It must, from the nature of things, often be impossible for the plaintiff to do more than prove simply the fact, the accident and the resulting injury. Frequently the person injured, the best witness, is dead. His legal representative may know nothing of the defendant's business and its management, nothing of how the railroad, mine or factory was couducted, and this, in many instances is true of the injured man who survives. It certainly would be a harsh rule to require the plaintiff in all cases to show affirmatively the particular negligence, if any, of which the defendant is guilty. On the other hand the defendant knows all about its own affairs or ought to, and how its business was managed. If there were no negligence in running the train at an unlawful rate, or into another train on the same track; in allowing the mine gangways to be unsupported; in running a boiler so that it explodes, or in letting iron. beams

fall upon a much frequented street certainly the defendant having had the management and control can show that due care was employed, if such be the fact. And so it is, and ought to be, the law that, when the injuries were caused by an accident or casualty that would not usually, and according to the ordinary course of things

37 The doctrine under discussion has been held applicable in the following cases: Greco v. Bernheimer, 17 Misc. Rep. N. Y. 592; Lyons v. Rosenthal, 11 Hun, 46; Colelli v. N. J. & P. Concentrating Works, 87 Hun, 428; Rook v. N. J. & P. Concentrating Works, 76 Hun, 54; Reynolds v. Van Buren, 10 Misc. Rep. N. Y. 703; Cummings v. Nat. Furnace Co., 60 Wis. 603; Smith v. Boston Gas Light Co., 129 Mass. 318; Worster v. Proprietors of Canal Bridge, 16 Pick. 541; Kirst v. M., etc., R. Co., 46 Wis. 489. Compare Reeis v. N. Y. Steam Co., N. Y. Ct. of App. 28 N. E. Rep. 24.

have happened if proper care had been exercised by the defendant, it is presumed that the defendant did not use such care, and it has the burden of proof to show that it did. Not every injury is the result of negligence, and this doctrine just stated does not so assume. It simply places on the proper party the burden of proving, if it can, that due care was used. It certainly is more just to require in this class of cases that the defendant should prove that it used due care, than it is to require that the plaintiff should prove that the other party was negligent the casualty and resulting injury having been already shown.

The contractual relations, if any, of the parties are matters to be considered, but the thing, the accident, may be prima facie evidence of negligence regardless of any contract, express or implied. By the explosion By the explosion of a locomotive boiler, for instance, three men may be injured, a passenger, a bystander, and an employee. Three suits are brought. The explosion is prima facie evidence of negligence beyond a doubt in the case of the passenger and in that of the bystander, but the servant, it would seem from the weight of authority on the subject, whether he was the engineer, or a brakeman, or even a freight mover about the station, would be compelled to show affirmatively that the company for which he worked was negligent. That might be just, if he had charge of the engine, whose boiler exploded, but if he did not, if his work took him where possibly he never saw the engine, it is unjust to compel him to prove negligence, beyond the explosion, as a part of his case. In the case of a common carrier, it must be shown that it had control or management of the instrumentality or agency through which the injury was inflicted, and so in the case of a master like proof should be required; but if a servant in his work had no control or management of the particular machine, agent or thing from whose misconstruction, mismanagement, or misconduct, injury resulted, he should not be obliged to show more than the accident and injury. He is not liable for the acts of those not fellow-servants, and he should not be obliged to show the defects of a machine he never saw before he was hurt. In the opinion of the writer, the decision herein cited, Olson v. Great Northern Ry. Co.,

holding that the running of freight cars against a tender on which the plaintiff stood, was evidence in itself of negligence is, correct in law and justice. The injured servant had no control over the cars, and in justice should not be made to show, as a part of his case, that those cars were negligently handled. And so in the supposed boiler explosion case, if the servant injured shows that he had nothing whatever to do with the engine, the explosion should be considered evidence of negligence in his case, as well as in the cases of the passenger and bystander. The contractual relations of the parties do not affect the thing, the accident. They affect the liability. These relations do not make the accident no evidence of negligence. They simply make the plaintiff in certain cases like that of a servant who had charge for the master, as well situated as the latter to show the negligence. The following exstract from an opinion by Wallace, J., states clearly and comprehensively the principle under discussion: "It is contended, however, that it was error to instruct the jury that they might infer such negligence from the fact of the ex. plosion, and it is argued that such a presumption only obtains when the defendant is under a contract obligation to the plaintiff, as in the case of a common carrier or bailee. Undoubtedly, the presumption has been more frequently applied in cases against carriers of passengers than in other cases of negligence, but there is no foundation in authority or in reason for any such limitation of the rule of evidence. The presumption originates from the nature of the act, not from the nature of the relations between the parties. It is indulged as a legitimate inference whanever the occurrence is such as in the ordinary course of things does not take place when proper care is exercised, and is one for which the defendant is responsible."38 1

In conclusion it may be said that the determination that the plaintiff has made out a case, that should go to the jury by simply showing the accident, or casualty and injury, does not, of course, decide the merits for the plaintiff. No right of defense is taken away, and even if the defendant puts in no evidence, it is still for the jury to say, under proper in

38 Rose v. Stephens & Condit Trans. Co, 20 Blatchford (U. S.), 411.

Court of Appeals of Kentucky, Feb. 26, 1903.

1. An insured in a mutual benefit certificate, containing no stipulation as to suicide, committed suicide. He was about 22 years of age. His father had died four months before. He had no reason to complain of life. At the death of his father he acted singularly, and continued to so act from time to time. Some of his friends before he killed himself thought him insane. His conduct on the night before his death and at the time of the suicide tended to sustain this conclusion. Held, that the question whether he was sane or insane at the time of the suicide was for the jury.

2. A mutual benefit certificate, payable to a designated beneficiary, and which is silent on the subject of suicide, becomes void if the insured commits suicide when sane.

3. The certificate does not become void if the insured commits suicide when insane.

Action on a benefit certificate by Sarah Jane Mooney against the Ancient Order of United Workmen, Grand Lodge of Kentucky. From a judgment for defendant, plaintiff appeals. Reversed.

HOBSON, J.: Appellee, the Ancient Order of United Workmen, is a corporation created by the laws of Kentucky. It consists of a supreme lodge and subordinate lodges. A beneficiary fund is set apart for the benefit of the families or heirs at law of deceased members. Benefit certificates are issued to the members, and they have the right of naming their beneficiaries. It is a fraternal association, govern d by the lodge system under the supervision of a supreme lodge, which pays no commission and employs no agents, except in the organization of local subordinate lodges and supervising their work. John G. Mooney held a certificate in the order, and while in regular standing shot himself on March 2, 1900. His mother was named as his beneficiary, and sought in this action to recover of the order on the benefit certificate. The defendant resisted recovery on the ground that the assured while sane voluntarily took his own life, and at the conclusion of the evidence the court peremptorily instructed the jury to find for the defendant. The certificate sued on is in these words: "This certificate, issued by the Grand Lodge of the Ancient Order of United Workmen, of Kentucky, witnesseth: That Brother John G. Mooney, a workman degree member of John L. Dorsey Lodge, No. 98, of said order, located at Dixon, in the State of Kentucky,

is entitled to all the rights, benefits, and privileges of membership in the Ancient Order of United Workmen, and to designate the beneficiary to whom the sum of two thousand dollars of the beneficiary fund of the order shall, at his death, be paid. This certificate is issued subject to, and is to be construed by, the laws of the order. He designates, as beneficiary under the terms hereof, Sarah Jane Mooney, bearing to him the relation of mother. In witness whereof the Grand Lodge has caused this to be signed by its Grand Master Workman and Grand Recorder, and the seal thereof to be attached this 29th day of November, 1899. John W. Baker, Grand Master Workman. J. G. Walter, Grand Recorder." It will be observed that there is nothing in the certificate in regard to suicide, or providing that the company shall not be liable if the assured killed himself. It was, however, pleaded by the defendant that this was stipulated in the laws of the order, and that by the terms of the certificate it is to be construed and controlled by these laws. The only thing in the laws of the order on the subject is in section 8, article 10, of the by-laws, which, among other things, prescribes a form of application to be used by applicants for membership. In this form so prescribed, these words are used: "I further agree that if, within two years after the date of my taking or receiving the workman degree, my death should occur by suicide, whether sane or insane, except in delirium resulting from disease, or while under treatment for insanity, or after a judicial declaration of insanity then the only sum which shall be paid, or which is payable, to my beneficiaries, shall be the amount which I may have paid into the beneficiary fund of the oder during the term of my membership." But the application which the deceased in act signed was on a different form, and was in these words: "November 29th, 1899. To the Grand Lodge of Kentucky: I, John G. Mooney, having made application for the workman degree i John L. Dorsey Lodge, No.- -, Ancient Order of United Workmen, State of Ken ucky, do hereby agree that compliance on my part with all the laws, regulations, and requirements which are or may be enacted by said order is the express condition upon which I am to be entitled to have and enjoy all the rights, benefits, and privileges of said order. I certify that the answers made by me to the questions propounded by the medical examiner of this lodge, which are attached to this application, and form a part thereof, are true. I further agree that the beneficiary certificate 10 be issued hereon shall have no binding force whatever until I shall have taken the workman degree of said order, and until my medical examination has been approved by the Supreme or Grand Medical Examiner, as the case may be. I hereby authorize and direct that the amount to which my beneficiaries may be entitled, to-wit, $2,000 of the beneficiary fund of the order, shall, at my death, be paid to Mrs. Sarah Jane Mooney, bearing relation to me of mother."

It would seem from the evidence that the by-law providing for the form of application above quoted was of recent adoption, and that form of application made out according to it had not been sent out to the subordinate lodge at the time the deceased joined. The proof on this subject is not clear; but, however it may be, he in fact used the old form, and, so far as the proof shows, knew nothing of the other form. We are therefore of opinion that his contract cannot be tested or in any way affected by a mere form of application which had been ordained by the Grand Lodge, but which was not in fact used in his case. In the Supreme Commandery, of the United Order of the Golden Cross v. Hughes (Ky.), 70 S. W. Rep. 405, it was held that section 679 of the Kentucky Statutes is applicable to societies such as appellee, and that the application for the certificate or the by-laws, or other rules of the corporation, unless attached to and accompanying the certiticate, cannot be received in evidence or considered a part of the contract in any controversy between the parties interested in the certificate. As the by-law in question was not made a part of the certificate or attached to it, it cannot be considered, and the defense to the action based on this by-law cannot be maintained. The peremptory instruction of the circuit court to the jury to find for the defendant by reason of the by-law was, therefore, erroneous.

There being nothing in the certificate in regard to suicide, the question remains, is it a defense to the action that the deceased while sane voluntarily killed himself? The proof shows that the deceased was about 22 years old; his father had died four months before, leaving the deceased, his mother, and a younger brother surviving him; the deceased had been made postmaster in the room of his father at the town of Dixon, Webster county. He had no other insurance on his life. His health was good. So far as the evidence goes, he had no reason to complain of life. At the death of his father he had acted very singularly, and this he had kept up from time to time since. Not a few of his friends before he shot himself thought him of unsound mind. His conduct on the night before his death and at the time of the shooting tended to sustain this conclusion, and there was sufficient evidence to go to the jury on the question as to whether he was sane or insane at the time. The rule as to suicide where the policy is silent on the subject is thus well stated in 19 Amer. & Eng. Ency. of Law, page 73: "If the insured in a contract of life insurance, taken out for the benefit of his estate, or payable to a beneficiary the designation of whom may be changed at the option of the insured with the consent of the insurer, commits suicide, the policy is void if the insured was sane when he took his own life, and this for two reasons: In the first place, every contract of life insurance must be construed to contain an implied condition that the insured will not intentionally terminate his life, but that the insurer shall have the benefit of

the chances of its continuance until terminated in the natural ordinary course of events. It is upon these chances that the premium is calculated and the contract is founded; hence the suicide of the insu ed operates as a fraud upon the insurer, and especially is this so when the insurance is taken out in contemplation of the act. In the second place, the enforcement of the contract in case of death by suicide is opposed to public policy. If the contract should expressly include death from this cause, the provision, even if not prohibited by statute, would be contrary to public policy, in that it tempted or encouraged the insured to commit suicide, and it is obvious that the court will not imply a condition which if expressed in the contract would render it void. But when the policy is made payable to a nominated beneficiary, and contains no stipulation that it shall be void in case of the death of the insured by suicide, it may be enforced, notwithstanding the insured dies by his own hand, unless, perhaps, where the policy was taken out in contemplation of suicide.” See, also, to this effect, Hartman v. Keystone Mutual Life Insurance Co., 21 Pa. 466; Smith v. National Benefit Society, 123 N. Y. 85, 25 N. E. Rep. 197, 9 L. R. A. 616; Ritter v. Mutual Life Insurance Co., 169 U. S. 139, 18 Sup. Ct. 300, 42 L. Ed. 693; Knights Golden Rule v. Ainsworth, 46 Am. Rep. 332; Bliss, Life Insurance, § 242. Note to Breasted v. Fadners, etc., Co., 59 Am. Dec. 487.

It is earnestly insisted that if the insured, when he fired the fatal shot, had sufficient mental power to know that it would take his life, and fired the shot with that intention, there can be no recovery. We are referred to authorities so holding under certain policies containing stipulations as to suicide when insane, but we do not think this rule applicable to a case where the policy is entirely silent. The only reason that the death of the insured by his own hands is allowed to defeat the policy in such a case is, in the end, that it is a fraud on the company. But there can be no fraud by one who is insane. Those who issue such policies know that men are liable to become insane, and that insane persons at times commi suicide. If they wish to protect themselves from this risk, they should so provide in their policies. Where the policy is silent, we are unwilling to go beyond the rule above laid down exempting the company from responsibility where the insured voluntarily kills himself while sane. For the contract of insurance must be treated like any other contrrct, and the act of an insane person is not a defense to actions on any other contract, so far as we know. Under the evidence the court should have submitted to the jury the question whether the assured voluntarily killed himself while sane. We intimate no opinion as to what should be the rule where the policy has, under the terms of the policy, become incontestable. The deceased was insane at the time of the shooting, if he was then without sufficient reason to know what he was doing, or to dis inguish right from wrong, or if he had not then