the provision in the charter of the Taylor Brothers Iron Works Company, Limited, providing for advertisement of proposed general meetings of the stockholders for the purpose of changing, modifying, or altering the charter, included in its meaning and purposes the matter of dissolution of the corporation; and that, as all such general meetings affected the public in regard to the then present indebtedness as well as future credits of the corporation, such preliminary advertisement could not be waived. If Judge Billings was correct in this,-on which we express no opinion,-the Taylor Brothers Iron Works Company, Limited, does not even now appear to have ever been legally dissolved. Leaving this aside, however, and basing our judgment entirely on the estoppel pleaded in this present case, we are of opinion that the judgment of the circuit court should be reversed, and the cause remanded, with instructions to award a new trial; and it is so ordered.

ROBINSON v. UNITED STATES MUT. ACC. ASS'N OF CITY OF NEW
YORK.

(Circuit Court, E. D. Missouri, E. D. May 20, 1895.)

No. 3,781.

1. LIFE INSURANCE-INSURABLE INTEREST.

Where one effects an insurance upon his own life, and, in the policy, designates another as the payee, the latter may maintain an action on the policy, without showing an insurable interest.

2. SAME-INTEREST OF BENEFICIARY.

The beneficiary named in a policy of insurance on the life of another has no such vested or permanent interest in the policy as to prevent the assured, with the assent of the company, substituting a new beneficiary. 8. SAME-ACCIDENTAL INJURY.

An insurance company issued to one M. a policy insuring him against injury or death, effected through external, violent, and accidental means, but not covering death resulting from duelling or fighting, or happening while or in consequence of violating the law. M. was shot by one C., while engaged in an altercation, M. being at the time unarmed. Held, that M.'s death was accidental, and the company was liable upon the policy. 4 DEFENSES-ACTION PENDING.

Before his death, M. substituted one R. for the original beneficiaries in the policy. Held, that it was no defense to an action on the policy by R. that another action on the policy was pending, brought by the original beneficiaries, in another state, in which R. had intervened and been compelled to submit to a nonsuit.

This was an action by Minnie Robinson against the United States Mutual Accident Association of the City of New York on a policy of insurance upon the life of Emile O. Moore. The case was tried by the court, without a jury.

The policy sued on insured E. O. Moore, "subject to the by-laws and all conditions indorsed hereon, against personal bodily injuries, *** through external, violent, and accidental means," and against death resulting from such injuries. The first condition indorsed upon the policy provided that the insurance should not "extend to or cover accidental injuries or death resulting from, or caused, directly or indirectly, wholly or in part by, * * duelling,

i

fighting, or wrestling, * * * or voluntary exposure to unnecessary danger; nor extend to or cover accidental injuries or death happening * * while or in consequence of violating the law."

Geo. N. Sanders, for plaintiff.

W. C. Jones and J. C. Jones, for defendant.

The

PRIEST, District Judge. Action upon policy of insurance. policy of insurance was procured by E. O. Moore upon his own life, and, in the event of his death by accident, was made payable originally to his son and daughter. As he lawfully might, by the terms of the policy and the by-laws of the company, he substituted the plaintiff for the original beneficiaries, and this substitution was recognized and accepted by the company. The death of E. O. Moore

is admitted. Payment is resisted by the company upon the following grounds: (1) Because plaintiff had no insurable interest in the life of the assured at the time of his death; (2) that the original beneficiaries had a vested interest in the policy, which could not be defeated by any act of the assured; (3) that, by the terms of the policy, its protection or indemnity should not extend to injuries or death in consequence of "voluntary exposure to unnecessary danger" or "violating the law"; (4) that immediate notice was not given of the death of the assured; (5) that the assured died of a gunshot wound intentionally inflicted by Dr. Chinault, and his death was not therefore the result of an accident; (6) that another suit is pending in the courts of Arkansas in which the deceased's son and daughter, the original beneficiaries, are plaintiffs, and in which this plaintiff intervened, upon which intervention she was compelled to submit to a nonsuit.

1. A recovery cannot be defeated because of the want of an insurable interest of the plaintiff in the life of the deceased. The rule against wagering contracts of insurance only applies to the cases in which the insurance is procured and paid for by one who has no interest in the life of the assured. When one effects an insurance upon his own life, and in the policy designates another as the payee, the latter may maintain an action on the policy without showing an insurable interest. Association v. Blue, 120 Îll. 121, 11 N. E. 331; Campbell v. Insurance Co., 98 Mass. 381; Vivar v. Knights, etc. (N. J. Sup.) 20 Atl. 36; Ingersoll v. Knights, etc., 47 Fed. 272; Milner v. Bowman (Ind. Sup.) 21 N. E. 1094; Morrell v. Insurance Co., 57 Am. Dec. 103 and note; Glassey v. Insurance Co. (Sup.) 32 N. Y. Supp. 335. In this case the assured procured the insurance, and paid all the premiums. Indeed, this plaintiff did not know that she had been made the beneficiary until some months after the death of Moore.

2. It is equally well settled that the first-named beneficiaries have no vested or permanent interest in the policy such as cannot be disturbed by the assured with the consent of the company. Sabin v. Lodge (Sup.) 8 N. Y. Supp. 185; Supreme Conclave, etc., v. Cappella, 41 Fed. 1; Brown v. Lodge (Iowa) 45 N. W. 884; Association v. Kirgin, 28 Mo. App. 80.

3. It is insisted that Moore's death, being designed by his slayer, It may not have been accidental so far as Dr.

was not accidental.

Chinault was concerned, but it was so far as Dr. Moore's conduct was involved. The meaning of the word as employed in the contract must have reference to such disasters as are brought about through the culpable intention or designing of the assured. In one sensethat of scholastic philosophy-nothing is accidental, but we cannot employ such refinements in the interpretations of contracts of indemnity against casualties. Nor do I find that the assured was engaged in fighting or violating the law in that sense which would invalidate the policy. Dr. Moore was unarmed, and, according to the evidence of the only impartial witness to the tragedy, had made no menacing gestures at the time he was shot. He was, in my opinion, the victim of the nervous apprehension of Dr. Chinault. It does not follow that, if Dr. Chinault should be excused for the homicide, the defendant ought to be relieved of the obligations of the policy. He had the right to act upon appearances, and, though deceiving, they would relieve him. He may have acted in good faith in apprehension of immediately impending danger, and this, according to some authorities, would excuse him. But such defenses cannot be invoked by this defendant. It must stand upon a calm investigation

of the actual facts.

4. The point that no notice was given of the assured's death is not well founded in fact. The evidence of the secretary at the home office in New York shows that prompt notice was there received and acted upon.

5. Nor does the fact that litigation is pending in Arkansas constitute a bar.

Judgment will accordingly be entered for the plaintiff for the sum of $5,000, with 6 per cent. interest from the date of the institution of this suit.

LOWRY V. MT. ADAMS & EDEN PARK INCLINE PLANE RY. CO. (Circuit Court, S. D. Ohio, W. D. June 3, 1895.)

1. DAMAGES-PERSONAL INJURIES.

No. 4,782.

A verdict of $7,500 for personal injuries causing great suffering, and resulting in permanent disability, of a man who had previously been earning $300 a month, is not excessive.

2. CHARGING JURY-COMMENT ON FACTS.

The fact that a judge, in charging the jury, has failed to refer to certain facts which would have borne in favor of the defeated party, is not ground for a new trial, when the jury has been told that all issues of fact were to be determined by them, on the testimony, and that the comments of the court were for the purpose of illustration only.

3. PRACTICE-MOTION FOR NEW TRIAL.

Rules of procedure upon motions for new trials, contained in state statutes, do not apply in the federal courts upon such motions, which must be determined according to the course of the common law.

4. NEW TRIAL-NEWLY-DISCOVERED EVIDENCE.

Newly-discovered evidence which is merely cumulative or merely contradictory of other evidence is not ground for a new trial.

This was an action for personal injuries by Joseph A. Lowry against the Mt. Adams & Eden Park Incline Plane Railway Com

pany. Upon the trial the jury gave a verdict for the plaintiff for $7,500. The defendants moved for a new trial. Denied.

C. W. Baker, for plaintiff.

Ramsey, Maxwell & Ramsey, for defendant.

The

SAGE, District Judge. It is claimed that the verdict, which was for $7,500, is excessive. The testimony is that the plaintiff was earning $300 a month. He was under the charge of a physician for several months. The left thigh was terribly torn and lacerated by the iron head of the tongue of the wagon which which the car came in collision. The wound was from five to seven inches long, ragged and exceedingly painful. The parts would not reunite until finally skin grafting was resorted to. According to the testimony, some 500 patches were made before the wound was completely healed. The testimony of the surgeons who were in charge was that the plaintiff was crippled, and would continue to be so during life. power of extending and retracting the limb was seriously impaired, and the surgeon testified that he was as nearly restored at the time of the trial as he ever would be. In Railway Co. v. Brown, 6 C. C. A. 142, 56 Fed. 804, the court of appeals of the Seventh circuit held that $7,500 was not excessive damages for so injuring a railroad laborer that he became paralytic. In Southern Pac. Co. v. Rauh, 1 C. C. A. 416, 49 Fed. 696, a verdict for $10,000 was sustained upon the testimony of the attending physician, corroborated by that of another medical expert, that the plaintiff could not regain his health, although physicians called by defendant testified that plaintiff ought to recover soon. In Shumacher v. Railroad Co., 39 Fed. 174, the jury awarded $8,000 damages. Judge Parker, in his opinion, said that he was at one time inclined to regard the damages as excessive, but he sustained the verdict, holding that before a court could interfere on that ground the damages must be so excessive and disproportionate as to warrant the inference that the jury was swayed by prejudice, preference, partiality, passion, or corruption. In Osborne v. City of Detroit, 32 Fed. 36, the plaintiff suffered a complete paralysis of the right side, resulting from injuries occasioned by a defective sidewalk. Judge Brown upheld a verdict of $10,000. I do not feel at liberty to set aside the verdict of the jury in this case upon the ground that it is excessive, nor do I think it my duty to order a remittitur.

It is also urged that the charge tended to mislead the jury. It is not claimed that there was any misstatement of law, but that the court failed to refer, in its comments upon the facts of the case, to certain particulars which would have borne in favor of the defendant. The jury were told that all issues of fact were to be determined by them upon the testimony, and that whatever comments the court made were for the purpose of illustrating the statements of law, and were not to control the jury in any degree, with reference to their findings. The charge was altogether oral. No exception was taken to the refusal of the court to direct a verdict in favor of the defendant, and to the refusal of the court to give

The

one special charge as asked, and to the giving of it with qualifications. In the federal courts, exceptions, to be valid, must be taken at the time of the trial. They cannot be regarded if taken subsequently. Counsel referred in argument to the rules of procedure upon motions for new trial contained in the Ohio Civil Code. Code does not apply with reference to motions for new trial. They must be according to the course of the common law. See seventh amendment of the constitution of the United States; Railroad Co. v. Horst, 93 U. S. 291; Newcomb v. Wood, 97 U. S. 581; Petition of Chateaugay Ore & Iron Co., 128 U. S. 554, 9 Sup. Ct. 150; Fishburn v. Railway Co., 137 U. S. 60, 11 Sup. Ct. 8.

Upon the hearing of the motion, counsel urged upon the court that on a new trial facts favorable to the defendant might be brought out more clearly; that an exact statement of the location of the barricade, and its distance from the track, and of the distance between the tracks, could be presented, from which it would appear that the defendant was not guilty of negligence. All these were matters that were presented in evidence on the trial. There was no showing that the additional evidence could not have been procured. Indeed, from its very nature it is apparent that it might have been procured as well before the trial as after. Upon all the points suggested, evidence was offered upon the trial. It is a rule of the federal courts that a new trial will not be granted upon the ground of the discovery of cumulative evidence merely. Ames v. Howard, 1 Sumn. 482, Fed. Cas. No. 326; Brown v. Evans, 17 Fed. 912. It has also been held that newly-discovered evidence to impeach or contradict is not enough to warrant granting a new trial. Carr v. Gale, 1 Curt. 384, Fed. Cas. No. 2,433; U. S. v. Potter, 6 McLean, 182, Fed. Cas. No. 16,077.

It was also urged that there was no evidence that the car was actually in motion when it came in collision with the wagon which caused it. The only witness who so testifies is the gripman. Isaac Rigdon, for the plaintiff, testifies that the car was in motion when the collision occurred, and that he did not notice any slackening of speed of the car up to the time of the collision. Charles V. Avery, for the plaintiff, testifies that the gripman did not slow the car in any way before the collision. The plaintiff also testifies that there was no slackening up of the car, that he observed, before the collision. Mrs. Redman, for the plaintiff, testifies that she did not notice whether the car had been slacked in any way. To the same effect was the testimony of Mr. Daniel Metz. Howard Kemper, a witness for the defendant, says that the car did not stop until the collision occurred.

The motion for new trial will be overruled.