but I felt it due to you, due to justice, that I should make the above statement.

I shall have occasion to say one thing, if I do not forget it, in regard to the autopsy. Perhaps I might as well say it here, lest I should forget it, as at any other time. Complaint was made by counsel for the plaintiff, that this defendant exercised the privilege, if you call it so, or that he undertook to make an autopsy when this man was lying dead, before he was buried. Now, if you will examine this policy, gentlemen, you will find here a provision made for that very purpose a provision in this policy, that in case of death, or any other time, when accident occurs, the company shall have the right to examine; and you will see the necessity of it, gentlemen. I comment now upon this, as it was adduced as evidence of fraud. You will see the necessity of such a condition or right as this, in insurance policies, where a man might die and be buried, and it be alleged afterward that the death was caused by accident, whereas if an autopsy had been made it might have been shown otherwise; or where death did not occur it might be shown what the disability was or the extent of the accident was, to know how much should be paid. So, having secured that right, gentlemen, to make that examination, it was only exercising a right which they had by their contract.

But the plaintiff says further to you, gentlemen, that they called the agent of the company, and did not call the attending physician to make such autopsy: but, gentlemen, it was no more the part of the defendant company to call the attending physician, than it was of Mrs. Gowan; if she wanted him there, it was very easy for her to call him in; and you will weigh, gentlemen-you will weigh the considerations as showing to you whether this defendant practiced any fraud in this regard, and give such weight as it deserves. If there was fraud, or improper acts, on the part of the defendant, of course you will give the plaintiff the benefit thereof, and it will be the duty of the court to instruct you so to do: while, on the other hand, the court feels bound to say that the plaintiff cannot set up fraud on the part of the defendant, unless he produces evidence of it. The contract provides, gentlemen,-I will read it, gentlemen,-"The said sum insured to be paid to Sarah F. Gowan, wife, or her legal representatives, within ninety days after sufficient proof that the insured, at any time within the continuance of this policy, shall have sustained bodily injuries, effected through external, violent, and accidental means, within the intent and meaning of this contract, and the conditions hereunto annexed, and such injuries alone shall have

occasioned death within ninety days from the happening thereof; or if the insured shall sustain bodily injury by means aforesaid, which shall, independently of all other causes, immediately and wholly disable and prevent him from the prosecution of any and every kind of business, then, on satisfactory proof of such injuries, he shall be indemnified against loss of time thereby, in a sum not exceeding twenty-five dollars per week for such period of continuous total disability as shall immediately follow the accident and injuries aforesaid, not exceeding, however, twenty-six consecutive weeks from the time of the happening of such accident;" and all this, gentlemen, in large print. It goes on: "Provided always, that this insurance shall not extend to any injury of which there shall be no external and visible sign, nor to any case except where the injury aforesaid is the proximate and sole cause of the disability or death." That is in small type, but in large type, "Provided that the accident shall be the sole cause of death."

Now, in order to enable the plaintiff to recover under this policy, gentlemen, it is incumbent on the plaintiff to prove to you that this injury or accident was the cause of death, and the sole cause. It is also incumbent on him to prove that the injury or accident left some external, visible mark of its happening, or of injury to the person, and if he fails to prove either of these points, he must fail in his case. Because, gentlemen, a policy of insurance is a contract, to be governed by the rules applicable to other contracts generally, and parties are not to be held liable for that which they do not undertake, or for that to which they do not agree; and in this case it was agreed between the parties that this plaintiff should not recover in case of death, unless an accident is solely and independently the cause of death. That is the undertaking. It is also agreed between the parties, that this plaintiff should not recover unless the accident left signs of the injury, external and visible, and neither you nor the court, gentlemen, have any right to travel out of this contract, and beyond it, and say that the party shall pay the sum, unless liable under this contract; and I might say, gentlemen, that it would be little less than judicial robbery, if, going outside of the contract, from any motive not arising within, and proper for the court, the defendants should be compelled to pay ; but, gentlemen, on the other hand, if this accident has happened, and has come within the terms of the contract, it is the right of the plaintiff to recover this amount, and it would be your duty so to award it. The plaintiff is entitled to the

full benefit of this contract, interpreted fairly and properly, equally with the defendant.

Now then, with these views, gentlemen, you will approach the evidence and see what it tends to prove. Of some things there is no dispute they may be taken for granted. I think it is not disputed that this is the contract made by the parties; it is not disputed that proper notice was given to the defendant upon the happening of this accident; it is not disputed-no question has been made-but what this plaintiff here is the administrator of Gowan's estate; though no proof of it has been given, it seemed to be taken for granted. Unless he were the administrator, as claimed, he could not recover; but I take it for granted he is.

There is no dispute, that on the twenty-ninth of May, 1875, Horance Gowan was thrown from his wagon, thrown on the ground, and the seat of the wagon thrown on him; that he recovered himself, got up from the ground, took up the seat, and went to the stable; that at that time, when inquired of if he was hurt, he said, "No," or "Not much," "He guessed not ;" and that afterward he complained of injury in the head and back, soreness in his side; that on Monday he did not labor much, if any, nor Tuesday, nor Wednesday.

I think so much has been shown by the evidence, and will be admitted, so that there can be no question in regard to these facts. On Thursday, or some time after, I don't know as it appeared exactly when I understood, however, one witness to say on Thursday-he took his bed; by another witness, about a week after the accident, but on some day, took his bed, and the sickness ran on until the twenty-third day of June, when he died. Now you will see, gentlemen, it becomes material for you in the first instance to inquire whether the injury received in this case was such that it left visible external marks. I think it is admitted by the plaintiff's counsel that no witness has testified that it did; but counsel say that it may be inferred from the circumstances; that you may suppose that it was so. Now, if the evidence, gentlemen, satisfies you; if the evidence satisfies you there were external marks, you may so find, but you cannot suppose it if the evidence does not tend to show it. Things are not to be taken as suppositions, which are required for the fulfillment of a contract; they are bound to prove it; but, gentlemen, visible signs of an injury would not be confined to scratches, or bruises, or broken limbs; there might be other indications, as, for instance, if you were satisfied that the nosebleed, that he had at some times, was the direct result of an injury, then that would be visible,-would be a

sign; but the complaint of pain is no visible sign, because that is something you cannot see; the complaint of soreness is no sign, because that you cannot see. The policy provides it shall be visible, something that can be seen; so if you were satisfied, gentlemen, even after two or three weeks, that the bloody discharges from the bowels was the direct result of the injury, that would be received as a visible sign of injury; but if it did not result directly from that, it would not be ; and I call your attention to this point of the case first, gentlemen, because if the evidence satisfy you, that notwithstanding he fell and was sore and stiff, if it satisfy you there was no visible sign of injury, you would be bound to find for the defendant, and in this connection you may weigh the complaint made by him to Dr. Stackpole-Dr. Stackpole was his attending physician-and you may inquire if Dr. Stackpole had been told of this accident, whether he would not have examined so as to have seen;-and, further, you may inquire whether there would not have been at the autopsy something to show, externally, that there was an injury received.

But, gentlemen, if upon the evidence you should be satisfied there was an external visible injury, your next inquiry will be, what was the cause of the death? And here the court say to you, gentlemen, in order to entitle the plaintiff to recover, you must find that the accident, the falling from the wagon and the bruise, was the direct cause of the death; because by the contract the defendants undertook to pay this money only upon condition that the accident alone, independent of every other cause, occasioned the death. It may be said, gentlemen, that this is strange and severe, but it is precisely the thing that this plaintiff, or the intestate Mr. Gowan, agreed to. He agreed that he was only to have this sum paid to his wife in case of his death, when the death resulted only from the accident. Now it is contended on the part of the plaintiff, gentlemen, that the death did result directly from the accident, and that is a question for you to determine. It is contended, on the other hand, that it did not result wholly from the accident, but that it resulted from some supervening or intervening cause, such as disease. Now this may be difficult for you to determine, but you must bring to it the best consideration you can upon the evidence that is before you.

The science of medicine, gentlemen, is an uncertain science, but the medical men are the best evidence we can have upon, certain points; because they are men supposed to be informed, and there are no other persons supposed to be so well informed; we will not say how well they may be informed, or whether they can always tell

the actual condition of a patient, or cause or character of a disease, or whether they do not miss it a great many times; but is there anybody any better informed in subjects or matters incident to their profession? And in this case they are the only witnesses before you, and you must be governed by their testimony. They are the only witnesses put before you by which you can judge what was the nature of the disease, or what was the cause of death.

I am not going to recapitulate minutely that testimony; I am not going to take up the testimony of one physician after another, and detail to yon the substance, or the exact words of what each one said. You will remember it, gentlemen, and you will give due attention to it, and such weight as you think it deserves. But because I do not call your attention to it you will not therefore disregard it. I am not much in the habit of calling the attention of the jury to the evidence, unless on important points, because you as jurymen sit here and hear the testimony as well as myself, and you are peculiarly the judges of the testimony and the effect to be given to it. I am not to say, gentlemen, how much weight is to be given to the testimony of Dr. Stackpole, of Dr. Jewett, of Dr. Ham, or any other one of the witnesses who have been put the stand; that is your duty, your privilege. You might say, "I believe this man ;" I might say, "I do not." Your belief is to govern, not mine. But sometimes when there is doubt on what has been said, then reference may be had to the minutes of the court, or, if there has been a stenographer, to his minutes, or to the minutes of the counsel.

In this case, Mr. Gowan received an injury, in a few days took his bed; it appears, from the testimony of Dr. Stackpole, had feverish symptoms, some headache, and that he treated it in a certain way, but that Dr. Stackpole did not at any time suspect there was an injury which was the cause of the condition of the patient, until he was told. That after he had been sick for some two or three weeks-I think three weeks-the day before he died, Dr. Jewett was called in as consulting physician, and he testified that the man was then in a dying condition, and I do not remember that the doctor said that he gave his opinion of what he thought was the matter with him. I do not remember that there was any discussion at that time, or anything said between Drs. Stackpole and Jewett, that the man had received an injury. But the disease or sickness ran along until, as said before, on the twenty-third day of June he died. T the defendant went to the house and requested from Mrs. Gowan a statement of the case, a history of it, and she gave it; then they

the counsel for