Ed. 1006; Keefer v. Pacific Mutual Ins. Co., 201 Pa. 448, 51 Atl. 366, 88 Am. St. Rep. 822. In Insurance Co. v. Moseley, 8 Wall. 397, 19 L. Ed. 437, which was an action on an accident policy, a declaration made by a deceased person was held admissible as a part of the res gestæ. The case is distinguishable from the case at bar. The question there was whether the assured died from the effects of a fall downstairs in the night. The testimony of his wife showed that he left his bed between 12 and 1 o'clock and when he came back said he had fallen down the back stairs and almost killed himself. And the son, who slept in the lower part of the building occupied by his father, testified that about 12 o'clock on that same night he found his father lying with his head on the counter and asked him what was the matter and that he replied he had fallen down the back stairs and hurt himself very badly. The court in sustaining the admission of the evidence did so upon the ground that the declarations were made immediately or very soon after the fall. Justices Clifford and Nelson dissented. In that case it was known when the accident happened and the declarations were practically contemporaneous with it. In the case at bar it did not appear when the accident occurred. It might have been in the morning when the decedent started to come to New York, or it might have been when he got off to call at a store at Cooper Square as the testimony shows he did, or when he again took the subway train to go to the Proctectory, or when he once more alighted from the train on arriving at his destination. And, indeed, the accident might have happened on a prior day. In any event, the declaration was not contemporaneous with the accident.

An examination of the record in this case, however, discloses a fatal defect. It appears established beyond controversy that the deceased at the time he fell to the floor in the Protectory was suffering from arteriosclerosis, and that the disease was in a well-advanced state and affected his entire vascular system. It extended throughout all parts of his body, including his brain. The disease results in a hardening and narrowing of the entire arterial system. The arteries become filled with lime salts and fibrous tissues so that the opening through which the blood passes becomes smaller and as the same amount of blood has to pass through the blood pressure is increased. As one of the witnesses testified "it is just as if you had been running water through a half inch pipe, and then finally the diameter of the pipe has been reduced, and you are pumping it through a quarter inch pipe," or an eighth of an inch pipe. And when the pressure becomes at length too high the blood vessel breaks at the weakest point. The arteries of the brain seem to be the ones which usually rupture under those conditions. The evidence showed that the deceased also was suffering from Bright's disease of a chronic nature, and that he had myocarditis, which is an inflammation of the heart muscle.

The autopsy disclosed that the deceased died from a hemorrhage in the brain, there being a rupture of a cerebral blood vessel which might have resulted from any exertion. The physician who made the autopsy testified that, while the immediate cause of death was the cerebral hemorrhage, arteriosclerosis, chronic diffuse nephritis, and myocarditis were contributory causes. He also testified that in case

of a hemorrhage of the brain death might result in ten minutes or within several days or weeks, according to the extent of the hemorrhage.

The plaintiff claimed that the cerebral hemorrhage was the direct and independent cause of the death of the insured, and that it was effected solely by his being hit by the subway door. But there is no evidence in the record that deceased was hit by the door, except his statement already referred to as erroneously admitted. The counsel for the plaintiff laid stress upon the condition of the hat of the deceased which was produced as an exhibit as were his broken spectacles, which fell out of his pocket after he had been picked up from the floor. Non constat but that the spectacles were broken when he fell to the floor, as they fell out of his left hip pocket and he fell on the left side. We inspected the hat exhibited to us upon the argument and discovered nothing which indicated that it had received a blow. The forehead rim of the right underside appeared either to have become unglued or the sewing separated the upper surface from the lower surface for perhaps an inch. The autopsy disclosed no external marks of any violence on the body or the head.

[2] The burden of proof rested on the plaintiff to establish the fact that the insured sustained an accident and that there could be no recovery upon the policy of insurance unless that accident was the sole cause of his death, as the policy insured him against a death. "resulting, directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means." The cases establish the principle that, if death results from disease or a bodily infirmity, there can be no recovery under such a policy whether the insured suffered an accident or not. And they also show that there can be no recovery if the insured sustained an accident but at the time it happened was afflicted with a pre-existing disease and if death would not have resulted if he had not had the disease, but his death was caused because the accident aggravated the effects of the disease or the disease aggravated the effects of the accident. National Masonic Accident Association v. Shyrock, 73 Fed. 774, 20 C. C. A. 3; Maryland Casualty Co. v. Morrow, 213 Fed. 599, 130 C. C. A. 179, 52 L. R. A. (N. S.) 1213; Preferred Accident Ins. Co. v. Patterson, 213 Fed. 595, 130 C. C. A. 175; Illinois Commercial Men's Ass'n v. Parks, 179 Fed. 794, 103 C. C. A. 286; Stanton v. Travelers' Ins. Co., 83 Conn. 708, 78 Atl. 317, 34 L. R. A. (N. S.) 445; Stokely v. F. & C., 193 Ala. 90, 69 South. 64, L. R. A. 1915E, 955; Pacific Mutual Life Ins. Co. v. Despain, 77 Kan. 654, 95 Pac. 580; Etna Life Ins. Co. v. Bethel, 140 Ky. 609, 131 S. W. 523; White v. Standard Life & Accident Ins. Co., 95 Minn. 77, 103 N. W. 735, 884, 5 Ann. Cas. 83; Thomas v. Fidelity & Casualty Co., 106 Md. 229, 67 Atl. 259; Robinson v. U. S. H. & A., 192 Ill. App. 475; Continental Casualty Co. v. Peltier, 104 Va. 222, 51 S. E. 209; Jiroch v. Travelers' Ins. Co., 145 Mich. 375, 108 N. W. 728; Ward v. Etna Life Ins. Co., 85 Neb. 471, 123 N. W. 456; Penn v. Standard Life & Accident Ins. Co., 158 N. C. 29, 73 S. E. 99, 42 L. R. A. (N. S.) 593.

The only testimony in the record that the deceased received any injury whatever is as we have already stated the erroneously admitted testimony that he mumbled that he had been hit by a subway door. And there is no testimony from which the kind and character of the injury, if any, could be inferred.

There is undisputed testimony that the conditions found at the autopsy to exist were in themselves a competent producing cause for the cerebral hemorrhage which resulted in the decedent's death. The court charged as follows:

"If you find that the plaintiff satisfies you by a preponderance of testimony which you believe that the man, walking around and carrying with him all the time the possibility of having a cerebal hemorrhage from some slight accident, did meet with an accident, and that was the proximate cause of his death, then it would come within the policy. That is, if the accident was the proximate cause of his death.

"On the other hand, if a man was walking around, who was likely to die at any time from disease or who was likely to die at any time from slight accident, and if he suffered a slight accident and then walked any distance, but then died from something apart from the accident, it would not be within the policy."

The court refused to charge as follows:

"The plaintiff in this case cannot recover under the terms of the policy herein for any loss resulting in connection or in conjunction with any other causes not of external violence, and if the jury should find that the decedent received an alleged blow by coming in contact with the center door of a sub way train that the said decedent at the time was suffering from arteriosclerosis, chronic diffuse nephritis, and myocarditis, and that by reason of the existence of the said physical conditions the said blow, in connection therewith, caused the cerebral hemorrhage resulting in death, this plaintiff cannot recover."

The court also refused to charge as follows:

"The policy in suit only insured the decedent 'against loss resulting directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means,' and if the jury should find that the defendant's death was not a loss resulting directly and independently of all other causes from bodily injuries effected solely through external, violent, and accidental means, their verdict must be for the defendant."

The requests to charge were proper. The charge as given was improper as appears from the cases already referred to.

The trial court submitted the case to the jury upon the theory that, if the alleged accident was the proximate cause of the death, the plaintiff would be entitled to recover. If there had been legitimate evidence showing that an accident had happened, the rule of proximate cause as applied ordinarily in negligence cases would have been inapplicable, as the policy upon which this suit was brought provided that there was to be no liability unless the injury was the sole cause of death.

The jury rendered their verdict on the theory that the accident in the subway occurred. When the jury returned their verdict the court addressing the jury said: "You have found by your verdict that the accident occurred on the subway?" And the foreman answered: "Yes, sir."

Not only was erroneous testimony admitted, but the instructions to the jury were based upon an erroneous theory. A verdict and judgment so obtained cannot be permitted to stand.

Judgment reversed.

HUME v. CITY OF NEW YORK.

(Circuit Court of Appeals, Second Circuit. December 11, 1918.)

No. 105.

1. COURTS 405(5)—CIRCUIT COURT OF APPEALS-JURISDICTION.

An appeal which presents questions other than that of the jurisdiction of the District Court is properly taken to the Circuit Court of Appeals. 2. COURTS 264(3)—JURISDICTION OF FEDERAL COURTS-ANCILLARY SUIT. An action by a general receiver appointed by a federal court for the property of an insolvent corporation, and to collect and preserve its assets, on a chose in action in favor of the corporation, is ancillary to the original suit and within the jurisdiction of the court, regardless of citizenship of parties, although the action is one in tort for damages against a municipal corporation.

3. EQUITY 35 "ANCILLARY SUIT."

An "ancillary suit" in equity is one growing out of a prior suit in the same court, dependent upon and instituted for the purpose either of impeaching or enforcing the judgment or decree in a prior suit, and the jurisdiction of such suit is dependent upon the jurisdiction of the court of the prior suit.

[Ed. Note. For other definitions, see Words and Phrases, Ancillary Suit.]

In Error to the District Court of the United States for the Eastern District of New York.

Action at law by Arthur Carter Hume, as receiver, against the City of New York. Judgment for defendant, and plaintiff brings error.

Reversed.

The defendant interposed a demurrer to the plaintiff's complaint, the demurrer was sustained, and the plaintiff appeals.

On the 30th day of December, 1910, a bill in equity was filed against the South Shore Traction Company, alleging insolvency. Thereafter Paul T. Brady and Willard V. King were appointed receivers by the District Court for the Eastern District of New York. The order recites:

"(1) That until further order Paul T. Brady and Willard V. King be and they hereby are appointed receivers for this court of the defendant corporation, and of all its real and personal property, all its assets and choses or things in action, including all moneys and book accounts, contracts of all kinds, debts due or to become due, bills receivable, bonds, stocks, mortgages, securities, deeds, leases, all interest in lands, both legal and equitable, muniments of title, rents, profits, incomes, of every kind and description, plants, works, machinery, and all other beneficial interests and valuable things held, owned, or possessed by the defendant, or to which it had the rights of possession, of every kind, description, and nature, wherever the same may now be, with all the rights and powers of receivers in such or like cases."

The order contained further provisions, among which were that the receivers carry on the business of the corporation, preserve and advantageously convert into money the property assets and effects of the corporation, collect any debt or demand, appear in and defend any and all suits at law or in equity then pending against the corporation, or do any and all lawful acts and

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

things usual in the premises "which in their judgment shall be best calculated to enable them to collect and preserve the property and assets of the corporation."

串

The receivers thus named continued in possession, sold the railroad, and transferred the property and good will, including the franchise rights, with the consent of the city of New York, to another traction company. After accounting, they were discharged, and the present receiver was appointed by an order of the District Court on the 21st of December, 1914. This latter order provided, among other things, as follows: "Ordered, that Arthur C. Hume be and he hereby is appointed receiver of the South Shore Traction Company in the place and stead of said Paul T. Brady and Willard V. King, and is hereby given all the powers and rights heretofore vested in said Paul T. Brady and Willard V. King as such receivers, and all the conditions and provisions of the original order appointing said Paul T. Brady and Willard V. King as such receivers are hereby made applicable in connection with the appointment of the receiver now substituted in place of said former receivers," etc.

With the power thus conferred, the plaintiff has instituted this action against the city of New York seeking to recover $1,750,000, in a complaint which alleges three separate causes of action which, in substance, allege that the traction company sustained damage because of delays and interferences on the part of the city, which were caused by reason of actions and conduct on the part of the city in carrying out its contract obligations arising through the franchises obtained by the traction company. The defendant appeared generally and signed various stipulations by which it obtained extensions of time to plead to the complaint. Later a demurrer was interposed, which the court sustained.

Arthur Carter Hume, of New York City, in pro. per.

William P. Burr, Corp. Counsel, of New York City (John P. O'Brien and Vincent Victory, both of New York City, of counsel), for defendant in error.

Before WARD, ROGERS, and MANTON, Circuit Judges.

MANTON, Circuit Judge (after stating the facts as above). [1] The District Judge sustained the demurrer upon the theory that the court was without jurisdiction to pass upon the claims of the receivers against the city (a citizen of the state of New York) for a cause of action based upon a claim of damages for tort, holding also that the filing of a general appearance in the action was not such a waiver as precluded the right to object to such want of jurisdiction. The defendant challenges the right of the plaintiff to be heard in this court, contending that the sole question presented is one of jurisdiction, and that the plaintiff's relief should be sought directly from the Supreme Court. American Sugar Refining Co. v. New Orleans, 181 U. S. 277, 21 Sup. Ct. 646, 45 L. Ed. 859. But here the plaintiff does not present solely the question of jurisdiction, and in view of the questions presented by the assignment of errors 1 and 2 this court can and will entertain jurisdiction upon this appeal.

For instance, the plaintiff presents as a first question the right of the court below to resettle the decree over his objection and makes that the subject of his first assignment of error. In Coler v. Grainger Co. et al., 74 Fed. 16, 20 C. C. A. 267, on the motion to dismiss an appeal in the Sixth Circuit, Taft, J., said: