was open or closed, and the presumption is conclusive that, if the objection had been overruled, his only testimony would have been that he did not know and could not state whether the door was closed or open. It is obvious that this evidence could have been of no advantage to the plaintiff, and in the trial of this case and the judgment WASHINGTON SUPREME COURT. Kate HORSFALL, Respt., บ. PACIFIC MUTUAL LIFE INSURANCE (32 Wash. 132.) 1. A dilation of the heart accompanied by deathly paleness, coldness of extrem ities, and cold perspiration on face and hands, which results in death in a few weeks, and is caused by a heavy lift, is within the terms of a policy insuring against the effect of bodily injury "caused solely by external, violent, and accidental means." 2. Deathly paleness, cold extremities, and cold perspiration on hands and face, and the permanent change of color on the following day from a ruddy hue to a bluish gray, as the result of a dilation of the heart due to a heavy lift, constitute a visible external mark, within the meaning of a policy Insuring against injuries, but which provides that it does not cover injuries where there are no visible, external marks upon the body produced at the time of and by the accident. 3. Delay of twelve days after death resulting from accident before notifying the insurer is not unreasonable, so as to defeat recovery upon the policy, al though it requires immediate notice to be given of the accident, and the accident occurred several weeks before death ensued. A (June 27, 1903.) PPEAL by defendant from a judgment of the Superior Court for Pierce County in plaintiff's favor in an action brought to recover the amount alleged to be due upon an accident insurance policy. Affirmed. The facts are stated in the opinion. Mr. F. R. Baker, for appellant: The testimony does not show that any accident happened to the deceased, and the court ought not to have left it to the jury to presume that an accident happened. Feder v. Iowa State Traveling Men's Asso. 107 Iowa, 538, 43 L. R. A. 693, 70 Am. St. Rep. 212, 78 N. W. 252. plication of the word "accident" to use it in connection with the facts as shown by the testimony. Cobb v. Preferred Mut. Acci. Asso. 96 Ga. 818, 22 S. E. 976; Travelers' Ins. Co. v. Selden, 24 C. C. A. 92, 42 U. S. App. 253, 78 Fed. 285. The testimony shows that pre-existing infirmity, weakness, or disease may have been present, and not been known. Where death results from disease aggravated by accident, or accident which aggravated the disease, neither of which of itself would have caused death, there can be no recovery. National Masonic Acci. Asso. v. Shryock, 20 C. C. A. 3, 36 U. S. App. 658, 73 Fed. 774; Commercial Travelers' Mut. Acci. Asso. v. Fulton, 24 C. C. A. 654, 45 U. S. App. 578, 79 Fed. 423; Hubbard v. Travelers' Ins. Co. 98 Fed. 932; Freeman v. Mercantile Mut. Acci. Asso. 156 Mass. 351, 17 L. R. A. 753, 30 N. E. 1013; Modern Woodman Acci. Asso. v. Shryock, 54 Neb. 250, 39 L. R. A. 826, 74 N. W. 607. In Foster v. Fidelity & C. Co. 99 Wis. 447, 40 L. R. A. 833, 75 N. W. 69, it is decided that a notice given twenty-nine days after the knowledge of the facts cannot be held to be immediate notice. In the case at bar plaintiff was in full possession of all the facts forty-two days before notice was given to the defendant company. Notice given after such length of time is not immediate. Mellen v. Hamilton F. Ins. Co. 17 N. Y. 609; Trask v. State F. & M. Ins. Co. 29 Pa. 198, 72 Am. Dec. 622; Railway Pass. Assur. Co. v. Burwell, 44 Ind. 460; Whitehurst v. North Carolina Mut. Ins. Co. 52 N. C. (7 Jones L.) 435, 78 Am. Dec. 246; Edwards v. Lycoming County Mut. Ins. Co. 75 Pa. 378; Travelers' Ins. Co. v. Selden, 24 C. C. A. 92, 42 U. S. App. 253, 78 Fed. 285; Louisville & N. R. Co. v. Woodson, 134 U. S. 622, 33 It requires a strained and unnatural ap- L. ed. 1035, 10 Sup. Ct. Rep. 630. NOTE. AS to what constitutes an accident | 651; Western Commercial Travelers' Asso. v. within the meaning of an accident insurance policy, see, in this series, note to Fidelity & C. Co. v. Johnson, 30 L. R. A. 206; Modern Woodmen Acci. Asso. v. Shryock, 39 L. R. A. 826; Kasten v. Interstate Casualty Co. 40 L. R. A. Smith, 40 L. R. A. 653; Feder v. Iowa State Messrs. F. S. Blattner and Stiles & pounds without difficulty. On March 24, Doolittle, for respondent: The question of what is the proximate cause of death in an action like that now under consideration is one of fact, to be determined by the jury from a consideration of the evidence. Freeman v. Mercantile Mut. Acci. Asso. 156 Mass. 351, 17 L. R. A. 753, 30 N. E. 1013; Modern Woodman Acci. Asso. v. Shryock, 54 Neb. 250, 39 L. R. A. 826, 74 N. W. 607; United States Mut. Acci. Asso. v. Barry, 131 U. S. 100, 33 L. ed. 60, Sup. Ct. Rep. 755; North American Life & Acci. Ins. Co. v. Burroughs, 69 Pa. 51, 8 Atl. 212; Martin v. Travellers' Ins. Co. 1 Fost. & F. 505; 2 May, Ins. §§ 514, 515a. While the insurer is entitled to notice of the happening of the event which fixes its liability, it is only entitled to reasonable notice. 1902, while at work in the shop of the Puget Sound Iron Works at Tacoma, he was called upon to assist in carrying a bar of iron 12 by 4 inches thick, and about 22 feet long, weighing from 350 to 400 pounds. This bar of iron was lying on a pile of round, flat, and square iron, close to the wall of the building, so that Mr. Horsfall was compelled to stand on top of the pile and reach below his feet in order to pick up the end of the bar. Another man had picked up one end of the bar, and Horsfall, by reason of his position, was at some disadvantage in picking up his end of the bar. He, however, picked up the end of the bar, and carried it to the anvil, where he laid it down, and immediately complained of being sick. He turned pale, trembled, grew cold, perspired profusely, and had to quit work. He went home and called a physician, who pro 2 May, Ins. § 461; Provident L. Ins. & In-nounced the trouble a violent dilation of the vest. Co. v. Baum, 29 Ind. 236; Travellers' Ins. Co. v. Mosley, 8 Wall. 409, 19 L. ed. 441; Remington v. Fidelity & Deposit Co. 27 Wash. 429, 67 Pac. 989; Perpetual Bldg. & L. Asso. v. United States Fidelity & G. Co. 118 lowa, 729, 92 N. W. 686. heart, causing hypertrophy, from which Mr. Horsfall died on April 18, 1902. Doctors, both for the plaintiff and for the defendant, testified that, under the circumstances of the lift, the lift itself, in their opinion, would cause the dilation of the heart. The appellant argues but one assignment Mount, J., delivered the opinion of the of error, viz., "in denying appellant's motion court: for judgment of nonsuit and dismissal at Action to recover upon an accident insur- the close of plaintiff's case." It is urged ance policy issued by appellant to John in support of this assignment (1) that the Horsfall during his lifetime. The respond-evidence fails to show that the deceased met ent, Kate Horsfall, is the beneficiary under the policy in case of the death of the insured as the result of an accident covered by the policy. Plaintiff had judgment below, and defendant appeals. The policy of insurance is in the usual form of accident insurance, and provides, among other things, for a weekly indemnity in case of injury from accident, and for a principal sum of $1,200 to be paid to the wife of the insured in case of the death of the insured within ninety days from the happening of such accident. It also provides that, unless the claimant gives to the company immediate written notice of any accident, with full particulars and affirmative proof of death, within ninety days from the time of the death, all such claims shall be forfeited. It provides, further: "This insurance does not cover in juries, or death resulting therefrom, of which injuries there are no visible external marks upon the body (the body itself not being considered such mark), produced at the time of and by the accident. The insured was a man fifty-eight years old at the time of his death, a blacksmith by occupation, weighed about 175 or 180 pounds, and was a strong, healthy, robust man, capable of a lift of from 200 to 250 with an accident of any kind; (2) if he did meet with an accident, it was not such an accident as was covered by the policy; and (3) there was no immediate notice given as required by the policy of insurance. 1. The policy insured the deceased against the effect of bodily injuries "caused solely by external, violent, and accidental means." Death by accident is defined to be "death from any unexpected event, which happens as by chance, or which does not take place according to the usual course of things.' So a sprain of the muscles of the back, caused by lifting heavy weights in the course of business, is injury by accident or violence occasioned by external or material causes operating on the person of the insured."" 2 May, Ins. 4th ed. § 514; United States Mut. Acci. Asso. v. Barry, 131 U. S. 100, 33 L. ed. 60, 9 Sup. Ct. Rep. 755; North American Life & Acci. Ins. Co. v. Burroughs, 69 Pa. 51, 8 Am. Rep. 212; 1 Cyc. Law & Proc. p. 248, and cases cited. The evidence shows conclusively that the deceased was a strong and apparently healthy man of fiftyeight years, who had never been sick, and who was accustomed to lift from 200 to 250 pounds without difficulty; that immediately after he had made the lift of one end of the bar, weighing from 350 to 400 pounds, he be Gale v. Mutual Aid & Acci. Asso. 66 Hun, 600, 21 N. Y. Supp. 893; Menneiley v. Employers' Liability Assur. Corp. 148 N. Y. 596, 31 L. R. A. 686, 51 Am. St. Rep. 716, 43 N. E. 54; Pennington v. Pacific Mut. L. Ins. Co. 85 Iowa, 468, 39 Am. St. Rep. 306, 52 N. W. 482; Whitehouse v. Travelers' Ins. Co. Fed. Cas. No. 17,566; Union came sick and "deathly pale." His extrem- | Barry, 131 U. S. 100, 33 L. ed. 60, 9 Sup. ities became cold, and cold perspiration | Ct. Rep. 755; Thayer v. Standard Life & stood out on his face and hands. The exer- Acci. Ins. Co. 68 N. H. 577, 41 Atl. 182; tion had caused a violent dilation of the heart. The result certainly was unexpected. It did not take place according to the usual course of things. If, instead of a sprain of the muscles of the heart, the deceased had sprained the muscles of his back, or arm, or ankle, it certainly could not have been reasonably claimed that the result was not due to accident. The fact that the heart | Casualty & Surety Co. v. Mondy (Colo. was dilated or ruptured was none the less App.) 71 Pac. 677. an accident, according to the usual acceptation of the term, and according to the definition above given.. We think the evidence shows an accident within the meaning of the policy. 2. It is also urged that the injuries causing death left no visible external mark, produced at the time of and by the accident, upon the body of deceased, and therefore the injury was one excepted from the policy. The evidence as stated above shows that immediately after the accident the deceased became deathly pale and sick, his hands and feet became cold, and the perspiration stood out on his face and hands. The next day after the accident his skin, which previously had been ruddy, became a bluish gray color, and remained so until his death. These, we think, were visible external marks, and sufficient to bring the case within the terms of the policy. The rule is stated in 1 Cyc. Law & Proc. p. 252, as follows: "The external and visible sign or mark required by the proviso that the policy will not cover any injury, fatal or otherwise, of which there is no visible mark upon the body,' need not necessarily be a bruise, contusion, laceration, or broken limb. It may be any visible evidence of an internal strain. Nor is it necessary that such evidence be present immediately after the happening of the accident." United States Mut. Acci. Asso. v. 3. It is next claimed that the motion should have been granted, because immediate notice of the accident was not given to the appellant as required by the policy. Immediate notice ordinarily means within a reasonable time and with due diligence under the circumstances of the particular case, of which the jury are ordinarily the judges. 2 May, Ins. 4th ed. § 462; Remington v. Fidelity & Deposit Co. 27 Wash. 429, 67 Pac. 989; Western Commercial Travelers' Asso. v. Smith, 40 L. R. A. 653, 29 C. C. A. 223, 56 U. S. App. 393, 85 Fed. 401. No claim is made in this action for weekly indemnity under the policy. The evidence shows that the respondent caused notice to be sent to the appellant on the twelfth day after the death of her husband. Until the death of her husband she was not a claimant under the terms of the policy. This was not an unreasonable delay, and therefore it was the duty of the court to submit the question of reasonable time to the jury, which was properly done. Finding no error in the record, the judgment is affirmed. Fullerton, Ch. J., and Hadley, Anders, and Dunbar, JJ., concur. Petition for rehearing denied. MARYLAND COURT OF APPEALS. George T. GAMBRILL, Appt., v. John W. SCHOOLEY. (95 Md. 260.) 1. A defendant pleading nonresidence to defeat the jurisdiction of the court over NOTE.-Competency of handwritings as standards for comparison. I. Scope of note, 428. II. Sufficiency of the proof of genuineness. a. Generally, 428. b. Opinion of genuineness, 429. him has the burden of proof to support his plea. 2. Errors in rulings at a trial upon a plea to the jurisdiction in which a judgment of respondeat ouster is reached are open upon appeal from a final judgment against defendant, without the necessity of a separate appeal therefrom. 3. The nonresident owner of a disII. continued. c. Statement of one of the parties that he wrote the specimen offered, 431. d. Admission of genuineness, 432. e. Correspondence, 432. f. Questions of identity, 433. g. Circumstantial proof, 433. tillery located in a certain county cannot be said, as matter of law, to be carrying on business there so as to bring him within the jurisdiction of its courts, where he has contracted the exclusive sale of his product for five years to one concern, which cannot be required to take more than 600 barrels per annum, and there is nothing to show that this cannot be supplied from stock on hand, while the distillery has been closed for three months, and is not to be opened again until orders require it. 4. Upon the question of the business residence, for jurisdictional purposes, of a nonresident who owns, but has discontinued the operation of, a distillery within the county, his testimony as to his intent with respect to resumption of such operation may be considered. 5. Evidence of defendant's eviction of plaintiff from premises furnished him under II. continued. h. Records, 435. i. Incompetent proof, 436. j. Matters of procedure, 436. k. Finality of the decision of the trial court, 437. III. What genuine documents are competent standards. a. Copies. 1. Letter-press, 438. 2. Photographic, 438. 3. Manufactured, 439. contract, and of the transactions connected therewith, are not admissible for the purpose of showing malice in an action for slander which had no relation to the eviction. 6. The rule admitting other utterances by defendant to show malice in an action for slander cannot be extended to include actionable words constituting the basis of a pending action. 7. Plaintiff's bankruptcy thirty years previous is too remote in time to render evidence of its details admissible in an action for slander. 8. The facts concluded by a judgment must be proved by the record. 9. Slanderous words similar to those charged in the declaration in an action for slander, spoken to third persons within a year after the commencement of the action, are admissible in evidence as tending to show malice. to handwriting, different from those proper to be used upon the direct examination; this is covered by a note to Hoag v. Wright, ante, 163. II. Sufficiency of the proof of genuineness. a. Generally. It is evident that the question of the sufficiency of proof of a standard is a subject interesting only in the jurisdictions in which specimens of handwriting may be made competent b. Specimens made post litem motam,440. | for comparison by proof to the satisfaction of 1. Generally, 440. 2. Specimens made for the occasion, c. Specimens likely to prejudice the jury; Gambrill v. Schooley, 441. d. Age, imperfection, and number of the standards, 443. IV. Summary, 443. 1. Scope of note. The question, what handwritings have been considered to be proper standards for comparison with disputed handwritings, within the meaning of the different general rules adopted in the various jurisdictions where comparison is allowed with writings other than merely such as are already in the case, or already in evidence in the case, is discussed in this note. Thus, it includes the question of what is sufficient proof of the genuineness of the offered specimen; what is competent as a standard over the objection of lack of accuracy or perfection in its production; or over the objection that the time when, or circumstances under which, it was made do not show good faith in its production; and the question of what is competent as a standard, in connection with an objection of the impropriety as evidence (aside from the question of the genuineness of the handwriting) of the matter or contents of the writing offered, as affecting the judgment, or biasing the minds, of the jury; as in GAMBRILL V. SCHOOLEY. On the other hand, the note excludes the question as to the general rule allowing or rejecting comparison as a means of determining the genuineness of disputed handwriting; this is discussed in a note to University of Illinois v. Spalding, 62 L. R. A. 817. The note is, moreover, not concerned with the question as to what classes of standards of handwriting may be used upon the cross-examination of witnesses the court, or of the judge trying the cause, that they are genuine productions of the person whose handwriting is in question. These jurisdictions, as will be seen upon reference to the note to University of Illinois v. Spalding, 62 L. R. A. 817, are: Ireland, Arizona, California, Colorado, Connecticut, Florida, Georgia (in the case of jury comparison), Iowa, Kansas, Kentucky, Louisiana (in the case of witness comparison), Maine, Maryland, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas (in criminal cases), Vermont, Virginia, Washington, Wisconsin, and Canada (generally). In ten of these-Ireland, Arizona, Colorado, Florida, Maryland, Missouri, New Jersey, New York, Rhode Island, and Canada-this result has been reached by the enactment of statutes which are in effect merely reproductions of the English common-law procedure act of 1854, chap. 125, § 27 (providing that such specimens shall be "proved to the satisfaction of the judge to be genuine)." Of the rest, similar statutes having the same general effect have been enacted in California, Georgia, Iowa, Kentucky, Louisiana, Montana, Nebraska, Pennsylvania, Tennessee, Texas, and Wisconsin. The remaining states allowing comparison with standards proved to be genuine have developed that rule as part of their common law. The Massachusetts rule requires that the handwriting used as a standard of comparison should be first established by direct proof of the signature, or other equivalent evidence, in order to avoid collateral issues tending to distract the minds of the jurors from the precise question before them. Bacon V. Williams (1859) 13 Gray, 525. In Vermont the genuineness of the document which goes to the jury must be either admitted words spoken under similar conditions where defendant stood could have been heard where plaintiff stood are admissible in an action for slander, the defense being that the words were not spoken. 15. An original deed cannot be used in evidence in place of a certified copy without proving the signature of the grantor and the due execution of the deed. 16. Slanderous words not published, spoken by plaintiff concerning defendant in a slander suit of which defendant was ignorant when he spoke the words which form the basis of the action, cannot be considered by the jury for the mitigation of even punitive damages. 17. The award of punitive damages in a slander case must be limited as the circumstances in the judgment of the jury require. 18. No recovery can be had for injury to plaintiff's credit as a merchant, in an or established by clear, direct, and positive tes- | fraud on the part of persons not parties to the timony. Adams v. Field (1849) 21 Vt. 256. action, the signatures used as a basis for comAnd where the testimony as to the genuine-parison should be such as are confessedly genness of papers offered as standards is clear, direct, and positive, is confined to the matter in issue, and no testimony is introduced on the other side in respect to their genuineness, they are sufficiently proved. State v. Ward (1867) 39 Vt. 225. There is no different rule to guide the court in determining the genuineness of a standard from that which obtains in the disposition of any other question which the court or jurors are called to pass upon, either in the admission, or in the amount of testimony required. The court should be satisfied by a fair balance of testimony-the usual rule in civil causes-that the signature is genuine, before it permits it to be used as a standard. Rowell v. Fuller (1887) 59 Vt. 688, 10 Ati. 853. In Pennsylvania, before the statute of 1895, it has been held, following Baker v. Haines, 6 Whart. 285, 36 Am. Dec. 224; Travis v. Brown, 43 Pa. 15, 82 Am. Dec. 540; Aumick v. Mitchell, 82 Pa. 211; Cohen v. Teller, 93 Pa. 123; Huston v. Ticknor, 99 Pa. 231; and Rockey's Estate, 155 Pa. 456, 26 Atl. 656,-that nothing short of evidence of the person who saw the paper written, or an admission of its being genuine, or evidence of equal certainty, should be received for the purpose of proving a writing as a standard. York Trust, Real Estate, & Deposit Co. v. Kindig (1894) 7 York Legal Record, 149. And in Ohio the standard writing offered for comparison must be proved by positive and direct testimony, and this means that it must be proved by someone who saw it written. Sperry v. Tebbs (1888) 20 Ohio L. J. 181. Where papers are offered as standards of comparison, and a witness testifies, as to each, that he was, at the time they were drawn, acting as the attorney of the person by whom they purport to have been executed, that the body of the papers is in his handwriting, and that he witnessed the signatures upon them and knew that he either saw that person write his name on them, or that that person acknowledged his signature before he attested them, although he did not remember seeing such person sign them, they are properly admitted. Costello v. Crowell (1885) 139 Mass. 588, 2 N. E. 698. But it has been held that, where a disputed writing is merely evidence of a collateral fact, and is offered only for the purpose of proving uine; for the jury would be taken away from the main issue, and have their attention directed to a collateral matter. Gilmore V. Swisher (1898) 59 Kan. 172, 52 Pac. 426. As to a different rule for the proof of standards in criminal cases, it was held in State v. Ward (1867) 39 Vt. 225, that the court should instruct the jury that, if they did not find that the papers offered as standards were, beyond a reasonable doubt, genuine, they should not be used as evidence against the prisoner. This decision, in so far as it holds that the determination of genuineness must be made by the jury, is overruled in Rowell v. Fuller ( 1887) 59 Vt. 688, 10 Atl. 853; but it is not clear that it is overruled as to the degree of proof necessary in a criminal case. And in New York, in the absence of a statutory rule as to the degree of proof to be made of standards offered for comparison, the general rule of the common law as to the sufficiency of evidence must prevail; in civil cases the genuineness of such a paper must be established by a fair preponderance of the evidence, and in criminal cases beyond a reasonable doubt. Thus, the genuineness of a writing may be established (1) by the concession or by the testimony, at or for the purpose of the trial, of the person sought to be charged with the disputed writing; (2) by witnesses who saw the standards written, or to whom the persons charged acknowledged the writing; (3) by witnesses whose familiarity with the handwriting of the person charged enables them to testify as to their belief as to its genuineness; (4) or by evidence showing that the reputed writer has acquiesced in it or recognized it, or that it has been adopted and acted upon by him in his business transactions or other concerns. People v. Molineux (1901) 168 N. Y. 264, 62 L. R. A. 193, 61 N. E. 286. b. Opinion of genuineness. The Kentucky Code of Practice, § 604, subd. 1, provides that the genuineness of such writings shall be proved to the satisfaction of the judge, "by other than opinion evidence." And this may be said to be the more usual rule. In Pennsylvania, before the statute of 1895, proof of a witness's belief of the genuineness of the test paper, although sufficient proof |