# Ensign v. Travelers Insurance

> Appellate Division of the Supreme Court of the State of New York · September 8, 1920 · 193 A.D. 369

URL: https://www.frixlaw.com/law-library/cases/5258547

## Case

- **Full name:** Kathryn D. Ensign v. The Travelers Insurance Company, Hartford, Connecticut
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** September 8, 1920
- **Citations:** 193 A.D. 369; 184 N.Y.S. 7; 1920 N.Y. App. Div. LEXIS 5558
- **Precedential status:** Published
- **Opinion:** Dissent by Kellogg
- **Judges:** Cochrane, Kellogg
- **Cited by:** 4 later opinions in the Frix Law Library

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## Opinion text

John M. Kellogg, P. J. (dissenting):
The plaintiff’s cottage, at Lake Charlotte, twelve miles from Hudson, was burned on the night of December 12, 1918, and in the ruins was found the charred trunk of a man. Recovery has been had upon two accident policies to the plaintiff, upon her husband, one dated July 19, 1916, for $7,500, with a double indemnity for the loss of life in a burning building, a public conveyance or passenger elevator, thus making that policy, as the jury finds, $15,000; the other, dated December 21, 1916, for $20,009, for death by accident while in a burning building, upon a public conveyance or upon a passenger elevator. The question for consideration is whether the plaintiff’s husband met an accidental death in the burning building.
At the time of the fire the total insurance, life and accident, covering Ensign’s life, if he met accidental death in a burning building, a public conveyance or a passenger elevator, was $103,250, of which $56,250 was payable to the wife, $5,000 to *390 the wife and children, $5,000 to the children, and $37,000 to his partner, Bates. Seven of the policies were issued prior, to February 27, 1918, and all of the seven were accident policies except three of $2,000 each, taken out October 13,1917, with annual payments of $239.88. These seven policies called for $61,250 in case of accidental death in a burning building, a public conveyance or passenger elevator; if accidental death occurred otherwise, the amount payable would be reduced by $35,000. The total annual premiums on these policies was $438.08, including the $239.88 on the life policies of October 13, 1917, or $198.20 if that premium is excluded, and the total annual premium on all policies outstanding at the time of the fire was $2,279.33.
After February 27, 1918, Mr. Ensign was very active in insurance matters. On that date two life policies, together calling for $5,000, were issued, in which the wife was named as beneficiary. The beneficiary was changed July fifteenth to the wife and two children. April 6, 1918, a life policy of $10,000 was issued, his estate being the beneficiary; June twenty-eighth the beneficiary was changed to the partner, Bates. May fourth a joint policy was issued upon the lives of Ensign and Bates for $15,000 for benefit of the survivor. On July sixth an accident policy for $5,000 was issued, payable to Bates, with double indemnity in case of loss in a burning building, a public conveyance or a passenger elevator. On August 16, 1918, a life policy of .$5,000 was issued to his estate; on October twenty-fourth the two children were substituted as beneficiaries. On November 20, 1918, he took an accident policy with an indemnity for loss of life during the first year of $2,000, payable to Bates. In all of the fife policies issued in 1918 the premium' was payable quarterly, and on the policy of August 16, 1918, a note was given for the premium falling due a few days before the fire. Bates testified that the premiums upon the joint policy and upon the $10,000 policy payable to him, or $1,322.60 per year, were payable by the firm. The other premiums clearly were an obligation against Ensign alone. He and Bates were equal partners as undertakers at Hudson, N. Y. It does not appear that there was any policy, accident or life, upon the life of Bates for Ensign’s benefit, other than the joint policy mentioned. These policies called *391 for a payment by Ensign of $966.76 per year in premiums, a large sum to be paid by a man whose annual total income, as we shall see later, was only $1,300, and who had himself, his wife and two children to support. He paid a house servant four dollars per week; her wages and the premiums payable by him would pretty well exhaust his annual income, in addition to which he would be charged the half of the $1,322.60 which Bates says the firm was to pay. The plaintiff knew that the husband had insurance, but did not know of the amount, and had no information that any of it was for the benefit of Bates. The insured was upwards of forty-nine years of age, weighed 190 pounds, was five feet nine inches high, a fairly strong, rugged man, with broad shoulders, well proportioned, and was in good health. The fact that he had so recently been accepted for insurance speaks for his good health. He had spent the morning of the fire in putting double windows upon his house at Hudson. He had lost no teeth; most of his upper teeth, however, were crowned with gold. He, his wife and two children lived over the undertaking office. His family relations were good.
Ensign and Bates had a morgue in the office building and a vault in the cemetery, in each of which were many dead, bodies. On account of the influenza there had been many deaths, and both partners had been very busy. Bodies came to the morgue from hospitals; other bodies came from private homes; in some cases the persons who died had no homes; some of them were foreigners. Ensign was the embalmer and had charge of the dead bodies. In one week the firm had thirty funerals. Both partners were men-of good standing in the community. Bates had a wife and two children. Each partner drew from the business $25 a week for living expenses. Ensign had no individual property except the little cottage at the lake which had been purchased by him and deeded to the plaintiff. The firm owned the building in which the office was, subject to a mortgage of $4,000. Bates’ house was mortgaged for $2,500. The firm, a few months before the fire, as “ a side fine,” had begun the sale of automobiles, and had outstanding notes, business paper, on that accounts, of $9,000, and it owed $4,700 in other indebtedness, apparently, in addition to the mortgage. Ensign' personally owed about $800, which *392 embraced several notes in the bank due to tradesmen. Some of the tradesmen’s notes had been running for some time and had been renewed from time to time with small payments thereon. The firm had been in business since 1907 and was fairly prosperous. Neither Bates, Ensign nor the firm paid any income tax. There is no evidence that either partner ever drew from the firm anything aside from $25 per week, from which it would result that that sum was Ensign’s total income. After the fire Bates paid the plaintiff, as Ensign’s widow, $5,500, as he says, for Ensign’s interest in the business, which of course was subject to the payment of his debts. This represented the return of any capital originally put in the business by him and one-half of the profits of the business since 1907.
The Ensign family lived at. the cottage during the summer, up to about Labor Day, and he was frequently there nights. Some time about the latter part of November, 1918, Ensign, it is said, began to make certain repairs upon the cottage and was there several days. Among other things, he removed the furniture from the second floor to the first, put down some linoleum on the second floor and was to paint it two coats; this was intended as a surprise to his family in the spring. He was called suddenly from the cottage on account of the sickness of his children who had the influenza. On the day of the fire the children were better and it was understood that the woman who was assisting in taking care of them would leave the first of the week.
Ensign, the morning of the fire, was cheerful and in his usual good health. He said he would go to the cottage and close it for the winter. His breakfast, at about seven o’clock, consisted of two or three pieces of sausage, five or six pancakes, bread and butter and coffee. His luncheon, about eleven o’clock, consisted of soup, pie, bread and butter and milk. Sandwiches and cake were prepared for him to take to the lake. He went to the lake in the Vim truck in which there was nothing but himself; left the truck at a neighbor’s and went to the cottage. Hammering was afterwards heard at the cottage. In the evening, about eight o’clock, he came down to the neighbor’s, about 500 feet from, the cottage, visited with the family a few moments, telephoned to Bates, at Hudson, that he would be home early in the morning and bought a quart of milk. He *393 gave a twenty-five-cent piece for the milk and received in change a ten-cent piece and five pennies; he put the change in his pocket and said he would go to the house and eat his supper. At eleven-thirty at night the building burned and he has not been seen alive or heard of since.
When the neighbors arrived upon the scene, the burned body rested upon a bed of coals thicker and higher than was found in other places, and this thickness reached out several inches beyond the body. Both arms, and both legs up to the knee, the skull, the face, the jaws and the teeth were missing. There was attached to the bone of the neck a carbonized mass, about four inches from back to front, four inches from side to side and two and seven-tenths inches in height from the upper bone of the neck. At the autopsy the mass proved to be -the brains. It was found in or over a granite milk pan, the neck laying over, the edge of the pan. Sometime after the body was removed Ensign’s keys were found lying on top of the ashes, apparently about where the hips of the corpse lay. A Lincoln penny lay six feet from the corpse. A constable’s metal badge, a plaything of his children, was also found, as well as a substance apparently gold which may have crowned one or two teeth. The gold watch which Ensign wore, and which was upon his person when he left home, could not be discovered, nor could the coins which the neighbor had given him as change. The keys were blackened, but the defendant’s expert swears that an examination of them showed that they could not have been through a fire. The ashes and the debris in the vicinity of the body were carefully sifted and examined; the ashes in the pan in which the head lay were also examined. Some pieces of bone, which could not be identified or put together as forming any part of the missing members, were picked up, together with some molten glass and an animal’s bone. There was no cellar under the building; it rested on cement or stone posts and was about a foot from the ground. An iron bedstead, with wire springs, which had been brought down from upstairs, stood near the door and the window; the head of the bed was towards the door and within two or three feet of it. The foot of the bed reached out into the room toward the stove. The chimney had fallen inside the room and eight or ten bricks were found near the foot of the bed. *394 The side of the foot of the bed near the corpse was bent down some, apparently by the fallen brick. The iron pipe of the bed was warped some; the bed and springs were blackened, otherwise were in good condition. The dead body lay near the bed and substantially parallel with it; the head was towards the door. Bates infers that when the corner of the foot of the bed fell down, the body rolled off the bed upon the bed of coals; but inasmuch as the bed was otherwise intact, it would hardly seem that the slight accident to its foot would have dumped the dead body upon the bed of coals.
It will be noticed that the absence of the feet, the legs, the forehead, skull, jaws and teeth, would naturally obliterate not only every ordinary means of identification, but every ordinary means of ascertaining the height of the body in life. The record establishes that where a body is consumed by fire, the teeth and shin bone practically remain intact and, .at a crematory, have to be destroyed, after all else has disappeared but ashes, with mortar and pestle. It is seldom that the skull, forehead, jaw bones, legs and arms are missing. They may be weakened by the fire and reduced to such a state that they can be disintegrated, but they keep their shape until force is applied to them. There is no substantial dispute upon this subject. Possibly, of course, the falling debris may have caused more or less disturbance. But the fallen brick were at the foot of the bed, and there is no suggestion that the granite milk pan, in which the head lay, was broken. ■ It would, therefore, .seem that the teeth, jaws, skull and bones of the head would naturally be found in the pan. The evidence as to the probable survival of the bones in a fire, after the other material of the body, has disappeared, is interesting and convincing.
It is conceded that, with knowledge of the length of the femur, in one or two directions, the height of a man, with reasonable certainty, may be ascertained. The plaintiff’s expert says that in fifty per cent of the cases it is correct within a fraction of a centimeter; that in thirty per cent it varies not to exceed an inch and in twenty per cent there may be a variation which will reach, in some cases, to three inches. The length of the femur here is undisputed. Dr. Vaughan, the plaintiff’s expert, reckoning from it, gave the height .of the dead man as between seventy-one and seventy-two inches, or *395 five feet eleven inches or six feet, but upon cross-examination, when the computation was challenged and he was informed that the defendant’s counsel made it seventy-two inches and a fraction by the same formula, the court asked him to verify the figures. He stated that he used the arbitrary formula of Roulett’s rapid method* but conceded that it had not been adopted, meaning I infer that it was not in general use in this country. Upon going over his figures he gave the result as seventy-two and fifty-two one-hundredths inches. The defendant’s expert gave the height as seventy-three and three-tenths inches. According to the formulas given by these witnesses, two and one-half centimeters are figured as an inch. If we take the substantially correct ratio, two and fifty-four one-hundredths, Dr. Vaughan’s evidence makes the dead man five feet eleven and two-fifths inches and the defendant’s figures about six feet and one-fifth inch. The respondent’s brief is clearly in error in computing that seventy-one and three hundred and eighty-five one-thousandths inches make five feet and nine and forty-five one-thousandths inches. The height of the deceased precludes to a reasonable certainty the conclusion that he was the insured. The computations being made by both experts from formulas, we are not justified in changing them and in using the two and fifty-four one-hundredths instead of the two and one-half which seems to be a part of the formula, the difference probably being compensated for by the other figures. Dr. Vaughan speaks of his formula as the “ rapid method.”
The insured, on his former visits to the cottage, had always left this truck near the cottage; this was the only time he left it at Wentzel’s. He left the truck at Wentzel’s barn at three o’clock and returned there about six o’clock, put it in the barn and drained the water from it. He came back between seven and eight to. telephone and get the milk. Upon leaving home Ensign told his wife that he would be back about ten o’clock if he got through his work; if not he would stay there and have a good sleep. When he put his truck in the Wentzel barn at six o’clock, drained it and locked the door, he knew that he was not to return home that night.
Dr. Gettler’s report shows the presence of formalin, the base of all embalming fluids, in the kidney and liver. Bates swore *396 that before the funeral he had thrown an embalming fluid upon the body and with a trocar had jabbed it into various parts of the body. At the autopsy Bates made no suggestion that any embalming fluid had, at any time, been used. Dr. Schultze and two representatives of the company swear that Bates had stated to them that nothing had been done, to the corpse and that no embalming fluid had been used. He denies this, but Bates is deeply interested in the litigation. It is urged that his connection with the business, and the practical impossibility of taking a corpse from the morgue or the vault without his knowledge, may explain the large policies in his favor. Dr. Schultze swears that there were no marks of a trocar. Evidently if there had béen such marks they would have been noted in the autopsy, it having been made by physicians who represented both sides of the controversy. It is more than probable that an undertaker, bringing a corpse before doctors for an autopsy, would state to them, if such was the fact, that he had embalmed it, and the method thereof. Concededly, Bates made no such statement. His evidence as to putting embalming fluid upon the corpse evidently was suggested by the report of Symners. Whether or not the body was embalmed was a very material question. If a corpse was taken from the morgue or the vault to the cottage, it probably would be one that had been embalmed. The old wood stove in the cottage had some of its plates bulged out and broken but none had melted. That fact is seized upon as a suggestion that the over-heated stove broke open and set the building afire, but it seems incredible, with the head of the bed within two and one-half feet of the door, and with windows near, that any person on the first floor would not have made his escape.
Bates went to the cottage about a week before the fire to get Ensign. The road from the State road to the cottage, about two miles, was a very bad dirt road. As he left the State road and got half way up the hill, he tore a chain from his car and it was so muddy that he left the car there and continued the trip to the lake afoot. On the day of the fire, after Ensign had left Hudson at two o’clock, Bates, about four o’clock, ordered the chauffeur to put chains on the touring car, so as to be ready for a night call. It was a bright, fine day Ensign, on the morning of that day, had the chauffeur repair *397 the Vim truck so that he could use it. According to Bates’ theory, for sometime at least before that day the firm had no conveyance ready for a night call. The car with the chains on it was first used in going to the cottage after the fire.
At the autopsy Dr. Schultze represented the defendant and Dr. Vaughan the plaintiff. There were present several other doctors and others. Dr. Vaughan and Dr. Schultze agree fully as to the accuracy of the report of the autopsy. That report is complete, and shows the condition of the charred body, giving a particular description of the lungs, stomach, heart, kidneys, spleen, liver and pancreas. From the lungs over thirty blocks, varying in size from a half inch square to nearly an inch square in extent, were taken. Dr. Vaughan had a half of each block and he delivered those from the stomach, lungs, kidney, liver and spleen to Dr. Symners, the pathologist of the Bellevue Alhed Hospitals, for microscopical examination: Dr. Symners made the examination and his report was a letter written to the plaintiff’s attorneys, which we copy:
“ Gentlemen: Microscopic examination of portions of certain organs submitted to me by Dr. J. C. Vaughan, reveals the following changes:
“ Lungs: Many of the bronchioles together with some of the alveoli are filled to the point of distention by polynuclear leucocytes. The most noticeable change in the lungs, however, consists in the presence of an exquisite organizing pneumonia. The process of organization being manifested by a diffuse overgrowth of richly cellular fibroblastic connective tissue. At one point is a rather large thrombosed blood vessel. Some of the alveoli are emphysematous, and in places the interstitial tissues are rich in coal dust. The blood vessels of the pierna are deeply injected.
“ Kidney: One part of the kidney shows wide spread necrotic changes. Another part reveals increased cellularity of the Malpighian tufts, together with intense granular degeneration of the lining epithelium of the tubules. The lesion in the better preserved portion of the kidney is that of a sub-acute productive glomerular nephritis.
“ Microscopic examination of the fiver, muscle tissue and spleen shows extensive necrotic changes. (Signed) Douglas Symners, Director of Laboratories.”
*398 It is idle for Dr. Vaughan to say that the report relates only to a particular section of the lungs. The report was made upon all the sections taken and, in every substantial respect, it agrees upon those subjects with the testimony of Dr. Schultze who made a microscopical examination of all the blocks taken from the organs or other parts. A layman, with an ordinary dictionary, from Dr. Symners’ report, can satisfy himself that the corpse was not the well, vigorous, broad-shouldered, rugged Ensign, who weighed 190 pounds. Dr. Schultze makes clear that it would have been impossible for the man to be around performing the acts which Ensign was shown to have performed on the day of the fire, and clearly shows that the man died from acute broncho pneumonia, from influenza.
■ The report of the autopsy shows a thinness of fat in the several places where fat was found. Dr. Schultze swears that the underlying fat between the muscles of the belly was well preserved, but was very thin and scant, showing that the fat of the man had been consumed in nourishing the body by reason of inability to take food. The plaintiff’s expert does not. in any way deny or seek to qualify this testimony. It must always be remembered that Dr. Vaughan, the only expert appearing as a witness for the plaintiff, made no microscopical examination, and that he agrees in every respect with the report of the autopsy. The stomach was empty, the small and the large intestines were substantially in the same condition and the colon was completely contracted and empty. These facts, connected with the scantiness of the fat, showed that the man had not been eating much for some time, and are entirely inconsistent with the meals which Ensign ate during the day. As we have seen, Ensign had sandwiches, cake and milk at eight o’clock. There was an absence of carbon and soot in the larger air tubes, but in case of death by conflagration they would be found. The blood was clotted, while in cases of death by conflagration it would remain fluid. The coal dust, spoken of by Dr. Symners, is always found present in the lungs in civilized life.
It is impossible, in the length of an opinion, to refer particularly to the autopsy and the evidence of the experts. Dr. Vaughan, plaintiff’s expert, concedes that the man had been suffering from influenza pneumonia for a week or more. He says *399 “it is a typical case * * * of influenza pneumonia,” and that it was well along “ because it was organized.” But he infers that it was resolving pneumonia and localized, and, therefore, it would have been possible for the man to be up and around. While he says the man did not die of influenza pneumonia, we have the following questions and answers which seem to be quite conclusive: “ Q. Now, doctor, if with this report here as it is today, with the sections that you delivered to him, then the individual had a well-organized infectious pneumonia in all parts of the lungs. A. He did not. Q. I say if we assume that Dr. Symners covers all sections? A. Yes, if he covered all the sections of the lungs that would be present. Q. Then the individual had a well-organized infectious pneumonia in all parts of the lungs? A. If he had that process in all parts of his lungs he would never have reached that far in the changes. Q. I say if we assume that from his report on all of the sections that he had received from you, then the individual here had a well-organized infectious pneumonia in all parts of the lungs? A. From which the specimens were removed, yes.” As he views it, the reports do not indicate any cause of the death, and he does not give an opinion as to the cause of death except the general statement that it was not due to influenza pneumonia. Where Dr. Symners speaks of a part of the kidney showing widespread necrotic changes and that the liver, muscle tissue and spleen show extensive necrotic changes, Dr. Vaughan says “ necrotic ” means death changes, but interprets the changes spoken of as changes after the death of the man. Dr. Symners knew that the man had been dead for days. He was making a microscopical examination of certain parts submitted to him, and it would be idle to say that those parts were then dead when in fact all parts were dead. Manifestly he meant by “ necrotic ” the death of tissue while the person was alive — “ the death of a circumscribed piece of tissue ” (Century Diet.) ■—“Mortification or gangrene” (Webster’s Diet.) and that these conditions preceded the man’s death. Evidently it was safer for the plaintiff to let its expert explain what the microscopist meant than to have him present. ■ Dr. Vaughan concedes that the condition of the lungs, the blood clots, the pleura, as mentioned in the report, result from inflammation or infec *400 tious disease. I think Dr. Schultze’s testimony, taken in connection with the report of Dr. Symners and the weak explanation of it by Dr. Vaughan, completely demonstrates that the man died of acute broncho pneumonia, from influenza, or at least was so suffering from it at the time of the fire as to preclude the possibility of Ensign being the dead man. Dr. Schultze gives the only plausible cause of the death.
The plaintiff refers to the report of Dr. Gettler, her expert, made to her attorneys, where he says that a chemical examination of the blood shows that there was present a small amount of carbon monoxide and urges that it resulted from the low combustion .in the wood stove or heater before the flames started, overlooking the fact that Ensign had been at the cottage since about three o’clock and presumably, at that time of year, had a fire in the wood stove from that time to bed time. It is suggested that possibly this poisonous gas caused his death and, to be consistent, that after the heater had emitted the gas it became so hot that it broke open and set the building afire. There is no dispute in the evidence that this poison has a peculiar affinity for blood. Dr. Schultze swears that in the vena cava, the largest vein of the body and which carries the blood from the body to the heart, the blood was clotted, and it was carefully examined for this chemical substance, which was found absent, but that in the blood in the roasted liver it was found in small degree where the surface was exposed; that if inhaled it would have shown in the vena cava. He swears that a portion of the clotted blood from the liver was apportioned to Dr. Vaughan, and infers that that was the blood delivered by Dr. Vaughan to Dr. Symners. Dr. Vaughan and Dr. Symners made no attempt to identify the blood in which the latter found the carbon monoxide, and, therefore, having the means of showing that Dr. Schultze was wrong, if he was, we may fairly assume that he was right. Plaintiff’s failure to call Dr. Symners. as a witness gives room for an inference that his evidence would not have been favorable to her. The case was tried upon the sole theory that death was caused by the burning building and not that it was an instantaneous death from carbon monoxide gas. If that was the cause of the death, the recovery could not stand except perhaps for $7,500, as the death must have *401 taken place before the building burned. But it is unnecessary to discuss that question, as there is no evidence to show that Ensign met his death by that poison. The evidence of the doctors cannot here be reproduced on account of its great length, but the more it is read on both sides the more convincing it is. We find no substantial evidence by any one that this death was caused by the conflagration, and the plaintiff’s expert ventures no suggestion as to the cause of death. It must be evident, with the various organs in the condition as recited in this case, that this man could not, upon the day of the fire, have been around as a well man doing a full day’s work and eating hearty meals; if, as the plaintiff’s expert concedes, he had been suffering from influenza pneumonia for about a week, it is impossible that the man could have been abroad and at work.
We again refer to the fact that what remained of the head was found in or over a granite milk pan, of ordinary size, and that most of the head had been completely destroyed. It seems incredible that such destruction could have come from the burning of this summer cottage. Evidently the head was subjected to a more intense and constant heat than any other part. What was in the pan if anything beftire the fire does not appear; the cause of its presence and its peculiar relation to the head, and its use, can only be inferred.
Expert evidence many times is justly criticised, and where there is a disagreement by experts it may be difficult to arrive at a correct result. But here there is no substantial, well-founded disagreement between them. The findings of the autopsy are agreed to by all. The plaintiff’s pathologist and the defendant’s pathologist, the only men who examined microscopically the stomach, lungs, kidneys, liver and spleen, agree as to their condition. The uncontradicted evidence shows that the dead body was not that of Ensign.
The judgment should be reversed as against the evidence and a new trial granted, with costs to the appellant to abide the event.
H. T. Kellogg, J., concurs.
Judgment and order affirmed, with costs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5258547. Public record. Not legal advice.