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Connell, 155 Ill. 192, 40 N. E. 608; Goos v. Fred Krug Brewing Company, 60 Neb. 783, 84 N. W. 258.

True, a judge who has not heard the witnesses, or noted their bearing while upon the stand giving their testimony, might not in many cases be so well qualified as the judge who presided to pass upon such motions; yet unless it develops that he is unable, by reason of the fact that he did not preside, to fairly pass upon the motion, he is as fully authorized to perform the function as if he had presided at the trial. In many cases it must be conceded that the manner of the witnesses in testifying has but little to do with the influence of their testimony, and that is readily manifest from the very nature of the testimony itself. In such a case, why may not the succeeding judge pass upon the motion as readily as the presiding judge? There is no reason left, or, if any, but slight, to urge against it.

The authority being granted, the discretion is to be exercised as the exigencies of the case may suggest or require. If the judge cannot do justice except by awarding a new trial, he should not hesitate to do so; but if, on the other hand, he can see from the record that no wrong can or will be done the defendant by denying the motion, the due and regular administration of justice requires that it should be done.

The discretion reposed in the judge to determine the penalty to be imposed within defined limits is of a somewhat different order. It is a function reposed through statute, by edict of the Legislature or of Congress. Alike discretion is frequently accorded to the jury, and the only case that I have been able to find attempting in any way to define the term employed in that sense is where the jury was concerned. I refer to Brown v. State, 109 Ala. 70, 20 South. 103. At page 83 Justice Brickell says:

"The discretion they (the jury) are to exercise, and exercise in obedience to their own consciences only, is the choice or election between the alternative punishments. The discretion is legal, in the sense that it is derived from and conferred by law. But it is not of the nature of judicial discretion, which is said to be controlled by fixed legal principles."

All offenses, even of the same order or name, are not of exact similitude in their commission. Each has its own peculiar characteristics. One may be accompanied with evidence of great malignity in the perpetration, and another with conditions tending to palliate or in some manner to excuse the act, though it may constitute a violation of law; and so on with varying shades of emphasis. It is to meet the exigencies, no doubt, of the occasion that the court is in many cases invested with a discretion within certain latitudes to visit punishment upon the offender. Perhaps it was thought also by the lawgiver that the judge has a better opportunity for knowing what punishment, within the limits specified, will best subserve the state or the government in deterring others from a perpetration of the same or like offenses. Where invested in the judge, it becomes wholly a matter for his exercise, the same as where reposed in the jury it is entirely for their exercise, and for none other. It is a function that belongs of right to neither the court nor the jury, but is solely for legislative regulation and direction, and no constitutional rights are impaired if withheld from both; but it may certainly, within reasonable limits, be accorded to either. So that where the discretion is vested in the court, there is no requirement, either expressed or implied, that it should be exercised by the judge presiding at the trial, in conjunction with, and as a part of, the jury's work in finding the verdict, and not by his successor as an act independent of the jury. Manifestly, such discretion must be exercised with sound judgment, having a conscientious regard for meting out such punishment only as in justice and right ought to be visited upon the offender, bearing in mind all the facts connected with and attendant upon the commission of the offense with which the party stands convicted. What matters, if any, may be considered beyond these here referred to it is not necessary now to suggest.

Now, considering the nature of the discretion involved, both in the consideration of the motion for a new trial and in pronouncing sentence, there exists no good reason why the succeeding judge may not conscientiously discharge both functions in the present case. The evidence has been fully reported, and a careful examination of it shows unmistakably that the jury was entirely justified in arriving at its verdict. There is but little room for the demeanor of witnesses while on the stand to have any particular bearing upon the weight of the evidence, they being called as to plain matters of fact, not readily susceptible of different shades of rendering. This holding is not in conflict with the case of U. S. v. Harding, Fed. Cas. No. 15,301, for there none of the facts appearing at the trial were preserved; Kane, District Judge, who wrote the prevailing opinion, saying: “The record which is before us is of course barren of facts.”

There may be cases where no one but the judge who presided at the trial could intelligently, or with propriety, pass upon the motion for a new trial or pass sentence; but this is manifestly not one of them.

Now, as to the second reason assigned by counsel why a new trial should be granted, namely, that the judge is a component or constituent part of the jury, and cannot act in the premises except in conjunction therewith. This contention has for its corollary the further idea that the right to have the judge who sat at the trial pass upon the motion for a new trial is a constitutional guaranty. But it has never been so held, that I am aware of. A trial by jury must be contradistinguished from a trial by the court. It is this sort of trial that the federal Constitution has guarantied to the accused. Of course, a trial by jury must be presided over by a court; but when the jury has returned its verdict, the accused has had the benefit of the constitutional guaranty. The court could not arbitrarily set the verdict aside without good reason, nor should it be upheld where the act would result in any injustice to the defendant. But the act in passing on the motion for a new trial is separate and distinct from the act of returning a verdict. It is distinctly a further step in the trial procedure, and it is not reasonable to suppose that, when the federal Constitution guarantied the right of trial by jury to the accused, it also guarantied the right to have the judge who presided at the trial pass upon the motion for a new trial.

If such were the case, it would follow inevitably that, whenever the judge who presided became disqualified after verdict rendered and before the motion was disposed of, the proceeding would come to an abrupt close, and a new trial would follow as a matter of course. That such is not the case, the many statutes providing that judges other than the one presiding may pass upon the motion bear testimony. None of these, that I am aware of, have ever been declared unconstitutional, and it is not within the bounds of reason to believe that they ever will be.

It follows from these considerations that the motion for a new trial should be denied, and it is so ordered.

HERDIC V. MARYLAND CASUALTY CO.

(Circuit Court, M. D. Pennsylvania. July 6, 1906.)

No. 21.

INSURANCE CONSTRUCTION OF ACCIDENT POLICY-DEATH FROM SEPTICÆMIA.

An accident policy, insuring generally against injuries sustained through external, violent, and accidental means, as therein limited, contained the following further clause: "This policy does not cover death or disability resulting from mineral, vegetable, gaseous, or any other kind of poisoning, except as hereinafter stated; but, subject to its conditions, it covers death or disability resulting from septicæmia, freezing, sunstroke, drowning, hydrophobia, choking in swallowing, and death only, as the result of an anæsthetic while actually undergoing a surgical operation at the hands of a duly qualified regular physician.” Held, that such clause must be construed in harmony with the general character of the policy, which was one against accidents; that, as so construed, its purpose and effect were to except from the risk death or disability from accidental poisoning in general, and to cover death or disability resulting from septicæmia, freezing, etc., but only when resulting from an accident “subject to its conditions,” and that the death of the insured from septicæmia resulting from an operation for appendicitis was not within its terms.

[Ed, Note. For cases in point, see vol. 28, Cent. Dig. Insurance, g 1175.

[Ed. Note.-Risks and causes of loss under accident insurance policies, see note to National Acc. Soc. v. Dolph, 38 C. C. A. 3.] At Law. On demurrer to plaintiff's statement. John E. Cupp and Clarence E. Sprout, for demurrer. Seth T. McCormick, for plaintiff.

ARCHBALD, District Judge. This suit is upon an accident policy. The person whose life was insured died of septicæmia, after an operation for appendicitis. This apparently takes the case out of the policy, there being no pretense that death was the result of an accident. It is contended, however, by the plaintiff that, accident or no accident, death by septicæmia is expressly provided for in the policy,

The issue between the parties is thus purely a legal one, and if the defendants are right the case may as well be brought to an end here and now, as sought by the demurrer.

By the policy in suit, the defendant company, in consideration of a premium of $25, undertook to insure Carl Herdic, the plaintiff's husband, “in the amount of $5,000 principal sum, and $25 weekly indemnity, against bodily injuries, not self-inflicted, sustained by the assured while sane, in the exercise of ordinary care, not under the influence of nor affected by intoxicants or narcotics, and through external, violent, and accidental means,

* independent of all other causes. The death of the assured admittedly did not so result, and, if it is essential to a recovery that it should, the plaintiff has no case, and the demurrer must be sustained.

But the primary undertaking of the company, as so expressed, is made subject to certain further terms and conditions, among which is the following:

(4) This policy does not cover death or disability resulting from mineral, vegetable, gaseous, or any other kind of poisoning, except as hereinafter stated; but, subject to its conditions, covers death or disability resulting from septicæmia, freezing, sunstroke, drowning, hydrophobia, choking in swallowing, and death only, as the result of an anæsthetic, while actually undergoing a surgical operation at the hands of a duly qualified regular physician.”

The question is as to the purposes and effect of this clause. According to the defendants, it is declaratory merely, not enlarging the grounds of liability as contended by the plaintiff, but, on the contrary, restricting and limiting them. According to the plaintiff, however, it is a new and independent provision, by which, regardless of what has gone before, death from any of the causes enumerated, however it may happen to be brought about, is expressly insured against.

Whatever may be said of the last part of the clause, there is no difficulty with the first of it. By it death as the result of any kind of poisoning is taken out of the policy, it being distinctly declared that, except as therein stated, the company will not be liable therefor. This must, of course, refer to accidental poisoning, nothing but death by accident having so far been spoken of; the evident purpose being to relieve the policy from what has proved to be a prolific source of litigation (1 Cyc. 264), poisoning, however caused or induced, being thus put unmistakably beyond its pale. Immediately following this is the provision which is the subject of controversy. By it the policy in terms is made to cover death or disability resulting from septicæmia, freezing, sunstroke, and the rest. So far as septicæmia is concerned, the connection is obvious. This, as is well known, is brought about by the absorption into the blood of putrescent or poisonous matter, and, under the designation of "blood-poisoning,” might possibly be regarded as excluded, although it has been held to the contrary. Omberg v. United States Mutual Accident Ass'n, 101 Ky. 303, 40 S. W. 909, 72 Am. St. Rep. 413. But when proceeding from external and violent sources, septicæmia is a well-recognized ground of liability in accident insurance. West Commercial Travelers' Ass'n v. Smith, 85 Fed. 405, 29 C. C. A. 223, 40 L. R. A. 653; Nax v. Travelers' Ins.

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Co. (C. C.) 130 Fed. 985; Delaney v. Modern Accident Club, 121 Iowa, 528, 97 N. W. 91, 63 L. R. A. 603; Martin v. Equitable Accident Ass'n, 61 Hun, 467, 16 N. Y. Supp. 279. Acceding to this, and in order to remove all question, by the provision under discussion septicæmia is declared to be covered by the policy, relieving it from the possible effect of that which had gone before. A like declaration, in part for the same purpose, is added with respect to the other causes of death mentioned. There is no intent manifested in this with regard to either of them to depart from the general scheme of the policy, and, on the contrary, the whole is expressly made subject to its conditions, whereby the company is only liable where death is the result of external, violent, and accidental means.

It is said, however, that without this clause the company would be liable for death from septicæmia as the result of an accident, and that, unless it was intended to cover death from septicæmia however caused, it has no force. But this is met by what has been already said. It loses sight of the preceding provision with regard to poisoning. No doubt without that septicæmia or blood-poisoning the result of accident would be a ground of liability under the policy; but with it, it would not, or at least would be doubtful. Being taken out of the policy under the general designation of poisoning, it was necessary to restore it by express mention, as was done, if liability on account of it was to stand.

But it is further urged that, among the enumerated causes of death which the policy is declared to cover are sunstroke, hydrophobia, and the administration of an anæsthetic; and, as neither of these, under any circumstances, according to the argument of counsel, can be asscribed to accident, death generally must have been intended to be provided against, and not simply death from accidental means. No doubt the causes of death spoken of go together, and the construction to be adopted must be good as to all or none. But, so far as regards the possibility of accidental death from septicæmia, freezing, drowning, and choking in swallowing, there can be no dispute. Neither, as it seems to me, notwithstanding the contention of counsel, can there be, with regard to an anæsthetic, as to which common experience shows that there may be an unintentional and adventitious overadministration of it, within the meaning of the policy, even at the hands of a careful and experienced physician or surgeon of the strictest school. This leaves only hydrophobia and sunstroke to be accounted for, which it must be confessed are diseases pure and simple, and as to which the point may therefore seem to be well made. But the popular idea is not so, and sunstroke, at least, has been the subject of considerable litigation, as the decided cases show. Sinclair v. Passengers Ins. Co., 3 Ellis & Ellis 478; Dozier v. Fidelity & Causualty Co., 46 Fed. 446, 13 L. R. A. 114; Railway Officers' Accident Association v. Johnson, 109 Ky. 265, 58 S. W. 694, 52 L. R. A. 401, 95 Am. St. Rep. 370. As a concession to this view, and in order to remove all controversy (the same as in the case of septicæmia) sunstroke and hydrophobia are put in with the rest; the company declaring that, as to them, just as the others, the policy holds good. This is the natural and logical construction to be given to this provision of the policy,

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