Page:The Green Bag (1889–1914), Volume 18.pdf/458

 NOTES OF RECENT CASES

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EVIDENCE. (Experiments — Insurance.) la. petent and immaterial to show the nature of the experiment. The Supreme Judicial Court in part — An exceedingly interesting holding on the ques tion of admissibility of evidence of experiments is said: "Whether the details of an experiment not contained in Tackman v. Brotherhood of Ameri can Yeomen, 106 Northwestern Reporter, 350. otherwise material may be shown as having some The action was on a mutual benefit certificate, bearing as substantive evidence upon a question and the association defended on the ground that on trial depends upon the nature of the question and insured had committed suicide. The only facts that of the experiment. If, for instance, the question that appeared were that deceased went to his be with reference to the operation, chemical or other barn to get his team and about an hour afterward wise, of some natural force which acts uniformly was found dead, suspended by the neck from a under any given conditions, and the conditions under tie strap attached to a bridle hanging on a peg which the experiment is made are shown to be so where deceased usually kept his harness. At similar to those which existed in the case on trial that trial a witness testified that he had hung a bridle the court can see that the experiment may be really with a tie strap attached on the peg, throwing the of assistance to the jury, the details of the experi tie strap over the peg so as to leave it hanging ment may be put in as independent evidence. The down, and by a series of experiments had discov true ground of admitting the details and result of ered that if he walked towards the bridle and such an experiment is that it may be of assistance, stumbled and fell with his head in the loop formed but the question whether it may be or whether it hy the strap, it was drawn around his neck in may or may not lead to too many collateral ques such a way that it caught or drew over itself, and tions is largely within the discretion of the court. would have choked him to death had he not gained It is manifest that in view of the nature of the his balance. The witness was a man of about the question hi dispute, namely, whether the azygous same height and weight as deceased, and a num vein was cut by the stab in the back, taken in con ber of experiments showed that the result men nection with the difference necessarily existing tioned ensued about three times out of four. between the conditions hi the case on trial and This evidence it was held was admissible as throw those under which the experiment was performed ing light upon the manner in which the death and the obvious difficulty, if not impossibility, of might have occurred, the court observing that ascertaining whether such difference had any while an accident of that nature might be exceed material effect upon the result, the court was fully ingly rare and possibly might never have occurred justified in excluding the experiment or any before, that did not furnish a sufficient reason for inquiry into its nature." saying .that it did not happen, since the novel, Lee M. Friedman, unexpected, and unforeseen against which no man INSURANCE. (Benefit Certificate.) Kans. — may safely calculate transpires every day. Con sidering the presumption against suicide arising A strict construction of a by-law of a fraternal from love of life as evidence in .the case, the court insurance society comes from Kansas in Taylor v. Modern Woodmen of America, 83 Pacific Reporter, regards the inference that death might have re sulted in the manner shown by the experiments 1099, where it is declared that a by-law which as quite as probable as the inference that deceased provides that if any member shall become intemperate in the use of drugs the benefit certifi committed suicide. In the recent notorious Tucker murder case (Commonwealth v. Tucker, 189 Mass. 457) the trial court had occasion to consider an almost similar question, excluded the evidence of experi ments and was sustained by the higher court. The question arose whether the azygous vein of the victim was severed by the stab in the back. Each side called experts, of whom the court satirically commented, " Each taking the view favorable to the side by which he was called." One of the defendant's experts having expressed his opinion was asked if he had made any experiments for the pur pose of " ascertaining that opinion," and in reply said he had. The defendant then asked him what experiments he had made. This, upon objection, was excluded, the court ruling that it was incom

cate held by such member shall become abso lutely null and void as to benefits, and all pay ments previously made thereon forfeited, does not apply to the case of a member who, prior to the enactment of such by-law, had become in temperate in the use of drugs and continued so thereafter. INSURANCE. (Construction — Forfeiture.) Kans. — Garner v. Milwaukee Mechanics' Insur ance Company, 84 Pacific Reporter, 717, lays down a doctrine as to which it may at least be said that there are many opposing cases. It is here declared that the word " interest " in a for feiture clause of an insurance policy, which pro vides that the policy shall become void if any change shall take place in the interest, title, or