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his petition in quo warranto in the court of appeals of Franklin county against John Renschler, resident of Hancock county, Ohio, charging the respondent with unlawfully exercising the franchise and privilege of writing life insurance.

It appears from the agreed statement of facts set forth in the record that the respondent, Renschler, was, at the time of the institution of this action and at the time of making the contracts hereinafter mentioned, engaged as an individual in the undertaking business in the city of Findlay, Hancock county, Ohio; that in connection with such business, and to further its volume, Renschler, during the last two years, not acting as a corporation, partnership, firm, or association, or as the agent or member of any such, but wholly in his individual capacity as a natural person,

entered into certain written contracts with certain other parties, of the following nature: The contract was termed a mutual note, whereby the party of first part promised to pay to respondent during the natural life of first party the sum of 15 cents (termed "interest") on or before the 10th of each month in advance. The face value of the note varied from $50 to $100. The contract or note provides that, if the said first party be not in default at time of his or her death, the second party, Renschler, agrees to furnish funeral for said first party.

There are many stipulations in the socalled mutual note, among which are these provisions: (1) That any person in good health from one to sixty years of age can purchase one note a follows: One to ten years of age shall pay 8 cents interest per month on a $50-note contract; ten to sixty years of age shall pay 15 cents interest per month on a $100-note contract. (2) The object of the note is to provide the holder with a respectable burial; such funeral to be furnished and conducted by the respondent, his heirs or assigns, only. (3) After period of one year's payments has been completed, the holder may discontinue payments and will receive a credit slip, which slip may be applied on his or her funeral expenses, provided the funeral be conducted by respondent. (4) Note not payable in cash, and redeemable for its face in such goods as handled by the respondent, to be selected by his or her heirs or friends making funeral arrangements. (5) If holder of note was not in good health at time of issue, or if obtained through fraud, it shall be deemed void.

which he operates as undertaker; that he is receiving monthly payments, termed “interest," on mutual notes from many parties, both young and old, and has been ready, able, and willing to comply with the terms of the contract, and as an individual undertaker has in fact complied with the terms thereof on the death of any holder of such mutual note, and is now furnishing funeral outfits whenever any of the holders of such notes decease. It is also made to appear that the respondent has never applied for or received any license or permission to transact any insurance business, from the superintendent of insurance of Ohio, or from any other officer or branch of the state government, nor has he made any report of the nature or extent of his business to the said insurance department.

In February, 1914, the court of appeals of Franklin county, on the foregoing agreed facts, entered its decree of ouster against the respondent, and error was thereupon prosecuted by respondent to this court. Held, the so-called mutual note is clearly insurance. By all the tests to which the contract may be subjected, it unerringly leads one to the conclusion that the intention of the parties was on the one hand to receive and on the other to provide a fund to pay the burial expenses of the insured.

The contract being naked insurance and nothing else, it is subject to regulation by the insurance department. State ex rel. Coleman v. Wichita Mut. Burial Asso. 73 Kan. 181, 84 Pac. 757; Fikes v. State, 87 Miss. 251, 39 So. 783; State v. Willett, 171 Ind. 296, 23 L.R.A. (N.S.) 197, 86 N. E. 68; Guenther, Ins. § 191; 1 May, Ins. 4th ed. § 27; Robbins v. Hennessey, 86 Ohio St. 181, 99 N. E. 319.

Even if individuals, acting as purely natural persons, can carry on the business of insurance and exercise the functions of such, they must comply with all of the laws of Ohio on the subject of life insurance. Section 670, General Code, reading: "The provisions herein relating to the superintendent of insurance shall apply to all persons, companies and associations, whether incorporated or not, engaged in the business of insurance."

It may well be questioned whether a franchise of this character, which by its very nature presupposes perpetuity, could be granted to an individual. See Robbins v. Hennessey, supra; State ex rel. Richards v. Ackerman, 51 Ohio St. 163, 24 L.R.A. 298, 37 N. E. 828. But if it be

It further appears from the agreed state-granted that § 670, General Code, above ment of facts that the respondent has entered into a number of such contracts, all, however, confined to the territory within

quoted, would authorize the issuing of such a franchise to an individual, such individual would be bound by all the restrictions and

requirements of an incorporated company. cannot speculate as to what he might have To hold otherwise would work a far-reach- been doing or why he was at the place where ing hardship on that part of our population the injury happened, contrary to the posimost needful of the protection of the state, tive testimony in the case. and lead to a recrudescence of the old wildcat insurance days, now happily a thing of the past.

Judgment affirmed.

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1. Upon the question of the right to recover for the death of an employee, the jury

Note.

Declarations explaining why person injured or killed was at place of accident as res gestæ.

Generally, as to statements made some time after accident as res gestæ, see note to Walters v. Spokane International R. Co. 42 L.R.A. (N.S.) 917.

Same accounting for presence of employee where injured.

2. One seeking to recover damages for the death of an employee injured at a place where he was forbidden to be by the rules of his employer has the burden of showing that he was there in the performance of some duty owing to the employer.

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3. Dying declarations are admissible as
such only in case of felonious homicide.
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declarations not ex-

plaining main facts.

4. Upon the question of liability of a railroad company for injury to an employee through the negligent collision of two engines, evidence of his statements soon after the injury as to why he was at the place where the injury occurred is not admissible as res gesta, because they do not in any way explain or characterize the main facts under investigation.

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5. Liability under the Federal employers' of the res gesta in an action for his killing at another point by a train closely following that from which he was ejected. "It is all a part of the history of the case," the court said. Such cases, however, are not considered as in point in this note, as they tend more to consider the cause of the injury than to explain why the person in

A search has revealed but little authori-jured was at the place of injury. ty upon the precise question passed upon in HOBBS V. GREAT NORTHERN R. Co., as to the admissibility of statements or exclamations by an injured person after the accident tending to explain the reason for his presence at the scene of the accident. In the HOBBS CASE, it will be observed that the declarations in question were not mere verbal acts, but were offered for their testimonial value, and their admission would have involved a real exception to the hearsay rule. In some of the cases cited in the note, it is not entirely clear whether the statements or exclamations were admitted as verbal acts, or because of their testimonial value.

Testimony that when defendant's master mechanic ordered an employee into a mine where he was suffocated by gas, he said it was perfectly safe, was held admissible as part of the res gesta of decedent's going into the mine, and of the order given him to go into it, in Alabama Consol. Coal & I. Co. v. Heald, 168 Ala. 626, 53 So. 162, an action based upon the negligence of the master mechanic in giving the order.

The statement of a passenger who was injured on alighting from a train on a dark night by falling into a pile of wood, to the effect that the conductor made him get off where he fell, made within a few minutes of the accident, while he was still uttering groans and exclamations of pain, was held admissible in International & G. N. R. Co. v. Smith, Tex. 14 S. W. 642, 6 Am. Neg. Cas. 585, as res gestæ. And see Knoxville, C. G. & L. R. Co. v. Wyrick, 99 Tenn. 500, 42 S. W. 434, holding evidence that a brakeman on defendant's train shoved or kicked deceased from a train at a specified point admissible as part

Testimony of a plaintiff injured while out of his regular line of employment, that defendant's timekeeper and assistant engineer both informed him that the superintendent had ordered him to help with the work, was held admissible in Elliff v. Oregon R. & Nav. Co. 53 Or. 66, 99 Pac. 76. The court said: "Though the testimony so objected to is in the nature of hearsay evidence, the statements were believed by the plaintiff, who, acting thereon, left his work and assisted in the manner indicated, and, as such declarations were made at the time he obeyed the command, they formed a part of the res gesta, and as such were admissible in evidence."

And where plaintiff was injured while oiling a moving saw, which he claimed the foreman of the mill had instructed him to do. the instructions of the foreman were admissible as part of the res gesta. Ribble

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PPEAL by defendant from a judgment of the Superior Court for King County in plaintiff's favor, and from orders denying motions for a directed verdict and for judgment notwithstanding the verdict, in an action brought under the Federal employers' liability act to recover for the death of plaintiff's minor son while in the employ of the defendant company. Reversed.

The facts are stated in the opinion.

v. Starrat, 79 Mich. 204, 44 N. W. 594. Such instructions immediately preceded the act to be done and were what moved him to do the act.

A case not in point in this note, but worthy of notice in this connection, is Chicago Terminal Transfer R. Co. v. Stone, 55 C. C. A. 187, 118 Fed. 19. In that case the action was for the death of a car repairer by the alleged negligence of a roundhouse "hostler" sent out in charge of a switch engine without a fireman. On crossexamination the witness was questioned as to who sent him out without a fireman. This question was objected to on the ground that there was no charge that the injury resulted from negligence in not furnishing a fireman. The appellate court, sustaining the ruling of the trial judge, held that the question and answer to the effect that the roundhouse foreman sent him were admissible as a part of the res gesta, on the issue of negligence on the part of the "hostler."

Messrs. F. V. Brown and F. G. Dorety, for appellant:

An employee cannot recover for injuries received while at work, without any evidence that he was at the time engaged in the performance of work within the scope of his employment, or in fulfilling directions of his employer, and without proof that his duty called him to the place where he received his injury, or that the defendant knew, or or had any reason to anticipate, that he would be in such a position.

Kennedy v. Chase, 119 Cal. 637, 63 Am. St. Rep. 153, 52 Pac. 33, 3 Am. Neg. Rep. 520, 26 Cyc. 1088; 20 Am. & Eng. Enc. Law, 2d ed. p. 131; 2 Labatt, Mast. & S. § 629, p. 1851; 4 Labatt, Mast. & S. § 1561, p. 4706; Krebbs v. Oregon R. & Nav. Co. 40 no ticket that morning; and after her death those who took immediate charge of her effects found no ticket and only a few pennies in money in her purse; also, that during the thirty minutes she had been at appellant's station one regular passenger train had departed for Chicago, and one in the other direction. The question for consideration is whether this evidence was part of the res gesto. If so, it was properly admitted by the trial court, and if not, it was error. Courts have not always found it without some difficulty of determination as to whether or not particular acts or declarations were so nearly contemporaneous or coincident with the act itself as to become part of the res gestœ. The rule is thus laid down by Greenleaf: 'Declarations, to become a part of the res gesta, must have been made at the time of the act done which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the facts which they were intended to explain, and so to harmonize with them as obviously to constitute one transaction.' Greenl. § 108, note 1. One of the cases relied on to support the contention of appellee that this evidence was admissible as part of the res gesta is Lake Shore & M. S. R. Co. v. Herrick, 49 Ohio St. 25, 29 N. E. 1052, 10 Am. Neg. Cas. 8. In that case a witness was permitted to testify that on the morning defendant in error left his hotel, he said to witness, who was a clerk, that he was going to Collins. He was injured So, a remark made by deceased to a neigh- while on his way to the train that ran to bor about an hour before her death, while Collins. In its opinion the court says: performing her ordinary household duties, 'Was his declaration that he was going to that she intended taking passage that morn- Collins competent evidence of that fact? ing on one of defendant's trains, is not ad- That depends on whether the declaration missible as res gesta, to show relation as was contemporaneous with and explanatory passenger. Chicago & E. I. R. Co. v. Chan- of the act of departure. One departing cellor, supra. The court said: "The evidence from home may have in view any conceivof Mrs. Stangnan, above cited, as to the acts able place or any conceivable purpose as and declarations of decedent an hour before his destination or object. The act of dethe accident, was practically all that was parture is thus in itself of the most ambigurelied on by appellee to show her relation as ous character. It does not afford the slighta passenger. To controvert this, it was est clue to the object of the journey. It shown by the only persons in charge of ap- is natural and usual, according to the natpellant's ticket office, that she purchasedural experience of mankind, that the party

That one killed at a station by a railroad train intended to take passage on one of defendant's trains is a material fact in an action against the railroad company for his death, and his declarations concerning such intent are admissible in evidence when part of the res gesta. Chicago & E. I. R. Co. v. Chancellor, 165 Ill. 438, 46 N. E. 269, 1 Am. Neg. Rep. 408.

But to be admissible as res gesto such declarations of the party must be connected with the act of departure. Ibid.

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Wash. 138, 82 Pac. 130, 84 Pac. 609; Stark v. Port Blakely Mill Co. 44 Wash. 309, 87 Pac. 339; Baltimore & O. R. Co. v. Doty, 67 C. C. A. 38, 133 Fed. 866; San Antonio & A. P. R. Co. v. Beam, Tex. Civ. App. 50 S. W. 411; Grant v. Union P. R. Co. 45 Fed. 673; Williams v. Arkansas, L. & G. R. Co. 125 La. 894, 51 So. 1027; Martin v. Kansas City, M. & B. R. Co. 77 Miss. 720, 27 So. 646; Shadoan v. Cincinnati, N. O. & T. P. R. Co. 26 Ky. L. Rep. 828, 82 S. W. 567; Taylor v. Grant Lumber Co. 94 Ark. 566, 127 S. W. 962; Doggett v. Illinois C. R. Co. 34 Iowa, 284; Phillips v. Central R. Co. 68 N. J. L. 605, 53 Atl. 221; George Fowler, Son & Co. v. Brooks, 65 Kan. 861, 70 Pac. 600.

Mr. Arthur E. Griffin, for respondent: Plaintiff's right to recover does not depend upon the deceased having actually been engaged in some service at the moment he was injured.

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Missouri, K. & T. R. Co. v. Rentz, Tex. Civ. App. 1 162 S. W. 959; Sayward v. Carlson, 1 Wash. 29, 23 Pac. 830; Lynch v. Texas & P. R. Co. Tex. Civ. App. —, 133 S. W. 522; Horton v. Oregon-Washington R. & Nav. Co. 72 Wash. 503, 47 L.R.A. (N.S.) 8, 130 Pac. 897; Texas & P. R. Co. v. Harvey, 228 U. S. 319, 57 L. ed. 852, 33 Sup. Ct. Rep. 518; Warren v. Townley Mfg. Co. 173 Mo. App. 116, 155 S. W. 850; Cincinnati, N. O. & T. P. R. Co. v. Daniels, 146 Ky. 86, 141 S. W. 1194; North Carolina R. Co. v. Zachary, 232 U. S. 248, 58 or declaration of the party, for the reason that such declaration or act could not be said to throw any light upon the motives of the parties. A person desiring to commit suicide might, an hour before the act, declare that he intended to become a passenger upon a train, when, as a matter of fact, no such intention existed in his mind, but the only intention there existing might be to go to a passenger station where trains were passing, for the purpose of taking his own life. Such declaration, therefore, made an hour, or any other space of time, previous to the act of departure itself would afford no light upon his intention, and could not be considered as evidence unless immediately connected with the act of departure. In the case of Lake Shore & M. S. R. Co. v. Herrick, supra, the declaration was connected with the act of leaving the hotel. The declaration was not made in connection with an preparation for a space of time previous to the act of departure for the train, but was immediately connected with the act of departure itself. In the case at bar, at the time the declarations which were sought to be admitted as evidence were made, the decedent was getting her children ready for school and performing her ordinary household duties, and while so doing she declared an intention of going to the city of Chicago. This declaration was not connected with the act of departure itself, and was not admissible. To admit such declaration as constituting a part of the res gesta would, on the same principle, hold admissible a like declaration made the day or a week before. Such a declaration, therefore, made to the witness Stangnan, was not competent as part of the res gesta, and it was error to admit it."

should say something respecting his departure of an explanatory character. Declarations thus made are part of the act itself.' Where the evidence shows the party is about to start on a journey, from common experience we know it is usual and natural that something is said by the party relating to the departure, and of a character indicative or explanatory. For such declarations to be admissible in evidence as part of the res gesta, they must be made in connection with an act proven, as in the case above cited. The rule is that the res gestæ generally remains with the locus in quo, and it does not follow the parties after the principal act is completed. The authorities to which we are cited in argument are principally those in which the declarations sought to be considered were made after the act or injury with which they are attempted to be connected. The rule is, in determining whether or not declarations made before or after the principal act are to be considered as part of the res gesta, lapse of time is taken into consideration, and such declarations made after the principal act will not be considered as part of the res gesto if there is any change from the place of occurrence of the principal act or in the condition of the parties. The evident reason of the rule is that in such event an opportunity for fabrication might be given, or testimony might be manufactured by interested parties. Whether or not such act or declarations will be so considered must depend upon the circumstances of each case. The real test is whether the principal act and the declarations sought to be considered as part of the res gestæ are separated from each other by such a lapse of time as to render it proba- | ble that the parties are speaking from de- Where deceased was killed at a railroad signing purposes rather than instinctive im- station where he went to take passage on a pulse. It can be stated as the general rule, train, his declarations before setting out that anything said or done before the prin- on his journey as to where he was going, cipal act occurred, or was within the con- and how, were admissible as res gesta. Ala. templation of the parties, cannot be re- Central of Georgia R. Co. v. Bell, garded as part of the res gesta, although, 65 So. 835. The court quoting from only separated by the least possible span Kilgore v. Stanley, 90 Ala. 523, 8 So. 130, of time, unless it tends to explain and un- a case not otherwise in point here, said: fold the principal act by the undesigned act i "What a person says on setting out on a

L. ed. 591, 34 Sup. Ct. Rep. 305, Ann. Cas. | Pac. 444, 647; Dean v. Oregon R. & Nav. 1914C, 159.

The declarations of the young man made at the hospital were properly admitted. Riggs v. Northern P. R. Co. 60 Wash. 297, 111 Pac. 162; Walters v. Spokane International R. Co. 58 Wash. 293, 42 L.R.A. (N.S.) 917, 108 Pac. 593; Roberts v. Port Blakely Mill Co. 30 Wash. 32, 70 Pac. 111, 12 Am. Neg. Rep. 372; Starr v. Ætna L. Ins. Co. 41 Wash. 209, 4 L.R.A. (N.S.) 636, 83 Pac. 113.

It is immaterial to an injured employee, or in case of death his beneficiaries, whether the employee was injured while engaged within the scope of his employment or not, or whether when injured he was obeying some command of a superior, or doing some act necessary to be done of his own volition without any direction from any person over him.

Horton v. Oregon-Washington R. & Nav. Co. 72 Wash, 506, 47 L.R.A. (N.S.) 8, 130 Pac. 897; Colasurdo v. Central R. Co. 180 Fed. 832.

Co. 38 Wash, 565, 80 Pac. 842; Illinois C. R. Co. v. Doherty, 153 Ky. 363, 47 L.R.A. (N.S.) 31, 155 S. W. 1119.

Morris, J., delivered the opinion of the court:

Respondent brought her action under the Federal employers' liability act, to recover for the death of her minor son, who was a hostler's helper in appellant's employ in its Interbay yards, Seattle. The accident resulting in the death of the minor, Charles Hargraves, happened about 7 A. M., November 16, 1912. The deceased was a member of the night crew, and had been assisting in preparing the engines to go out upon the road, by providing them with fuel, oil, sand, and water. His work was ended at 7 o'clock, when the day crew came on duty. The last work he was engaged in concerning which there was no dispute was putting sand in an engine which then stood at the sand house. There is some dispute as to whether the sand was being placed in the dome of the engine or behind the fire box door, but this is immaterial, as it is apparent that, whether the sand was being

It was error to refuse to permit the plaintiff to prove that it was customary in the yard at the time for hostler's helpers to go upon the pilots of the engines while assist-placed in the dome or in the rear of the ing in moving the engines, and plaintiff is clearly entitled to a retrial, and defendant estopped from claiming the action should be dismissed.

Lohse v. Burch, 42 Wash. 163, 84 Pac. 722; Greer v. Squire, 9 Wash. 359, 37 Pac. 545; Libbey v. Packwood, 11 Wash. 176, 39 journey, or to go to a particular place, explanatory of the object he has in view in so setting out, is res gestæ evidence, and may be proven; and the jury may give it such weight as they think it entitled to." And declarations of deceased made just before he boarded defendant's train and immediately preceding the occurrence of the accident causing his death, touching his purpose in going on the train, were held admissible as part of the res gesta in Baltimore & O. R. Co. v. State, 81 Md. 371, 32 Atl. 201. In this case the declarations of deceased expressed his intention of going to Washington. The court said: "Such declarations of the decedent, made at the very moment of time immediately preceding the act of the defendant company by which he lost his life, form part of the res gestæ, and were properly admissible. In support of this view, Mr. Greenleaf in his work on Evidence, vol. 1, § 108, pointedly observes that the affairs of men consist of a complication of circumstances so intimately terwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstances, and in its turn becomes the prolific parent of others: and each, during its existence, has its inseparable attributes and its kindred facts materially affecting its character, and essential to

cab, it would not call for deceased's presence at the place where he was when he received his injury. At this time engine 960 was standing on the roundhouse track, and a switch engine was standing on a storehouse track connecting with the roundhouse track, so close to the frog that it was not in the be known in order to a right understanding of its nature. These surrounding circumstances, constituting parts of the res gesta, may always be shown to the jury along with the principal fact; and their admissibility is determined by the judge according to the degree of their relation to that fact, and in the exercise of his sound discretion, it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description.' The plaintiff was entitled to this testimony as having an important bearing upon the right of the decedent to be upon the defendant's property, and pass over a customary way to the ticket office of the defendant, for the purpose of purchasing a ticket over its road to Washington."

And in Denver & R. G. R. Co. v. Spencer, 25 Colo. 9, 52 Pac. 211, for the purpose of showing that deceased was upon the depot grounds of defendant at the time the accident occurred, to meet his daughter-inin-law, who was expected to arrive on defendant's train, witnesses were permitted to testify over defendant's objection that they heard him make arrangement to that effect with her a few days previously. It was insisted that this testimony was mere hearsay, and therefore inadmissible. But, sustaining its admissibility as res gesto, the

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