Inasmuch as the evidence is not disputed that a current of but 104 volts was harmless, even to use standing on a wet floor, McCabe cannot be said to have in any way contributed to the defendant's act in sending a current of 2,000 volts into his premises.

The fifth and sixth exceptions are as follows: "Fifth. Because the court erred in permitting the witness Duffy to testify as a general expert in electrical matters. Sixth. Because the court erred in permitting the witness Duffy to testify as to the custom of hanging lights, in answer to question 193, page 48, of the record." We are of the opinion that the witness was sufficiently qualified to express an opinion upon the matters in question. And we here observe that the record shows an abundance of evidence, to the same effect as the testimony given by Duffy, from expert witnesses whose qualifications were and are unquestionable.

The seventh exception is as follows: "Seventh. Because the court erred in permitting the expert witness William L. Robb to testify regarding the recommendations of the American Institute of Electrical Engineers, in answer to question 232, page 97, of the record." As an answer tending to show the familiarity of the witness as an expert with the condition of the art, as theoretically stated by a body of scientists engaged in the investigation of the practical application of electricity to the affairs of human life, we think the question was a proper question, and overrule the exception.

The eighth ground of exception is not pressed.

The ninth ground of exception was the alleged error of the court in refusing to charge: "If the light was installed under the direction of plaintiff's intestate, and such installation was dangerous and contributed to the accident, then the plaintiff's intestate was responsible for the result of such faulty installation." It is sufficient to say that the evidence indubitably showed that the premises were wired and insulated for a current of only 104 volts, and that for that purpose they were properly wired and insulated, and that the premises in question were not wired and insulated, or intended or designed, for a current of 2,000 volts. It accordingly follows that the instruction in question should have been denied, as irrelevant to the issues and the testimony as presented.

The twelfth exception is that the damages awarded are excessive. This exception we find to be well taken, and, before we proceed to a consideration of that question, we here express our unqualified disapproval of the language used by the counsel for the plaintiff in his argument to the jury, as set forth in the tenth exception. The cause of action is the statutory action given by section 14, c. 233, Gen. Laws 1896, for the recovery of damages for death caused by "the wrong

ful act, neglect or default of another," and the measure of damages in this form of action is the pecuniary loss sustained. Nothing can be given in this action by way of solace for wounded feelings, or for the bereavement suffered, or for the pain and suffering of the deceased, and nothing for loss of society of the husband and father. It closely resembles in this respect the case of Schnable v. Providence Public Market, 24 R. I. 478, 53 Atl. 634, which was an action by a father for damages for the loss of service by reason of the wrongful death of his minor son. Obviously, then, when the fact of liability is established, the question of damages becomes as nearly a question of arithmetical computation as the circumstances of the case as disclosed by the evidence will permit; and consequently the rule of damages differs from that which obtains in other tort actions such, for example, as slander, libel, assault, and false imprisonment. It is obvious, too, that the loss sustained by the plaintiff here is the present value of the net result remaining after his personal expenses are deducted from his income or earnings. To ascertain this, it is, of course, necessary to ascertain first the gross amount of such prospective income or earnings; then to deduct therefrom what the deceased would have to lay out, as a producer, to render the service or to acquire the money that he might be expected to produce, computing such expenses according to his station in life, his means and personal habits; and then to reduce the net result so obtained to its present value. Central Railroad v. Rouse, 77 Ga. 393, 3 S. E. 307; Harrison v. Sutter Street Railway Co., 116 Cal. 156, 47 Pac. 1019; Ohio & Mississippi Railway Co. v. Voight, Adm., 122 Ind. 288, 23 N. E. 774. In the case at bar there was no evidence offered for the consideration of the jury as to such personal expenses of the deceased; and even if it be conceded that the amount awarded was justified by the evidence as the gross amount of the prospective income of the deceased, on which we express no opinion, it follows that this result must have been reached by the jury, even if uninfluenced by the observations of the plaintiff's counsel in his argument, without the presentation of evidence as to the personal expenses of the deceased, as above stated, and hence is incorrectly reached.

The liability of the defendant corporation in this case being clearly established by the evidence, we are of the opinion that both parties are entitled to the benefit of the judgment of a jury upon the amount of damages sustained, which are to be computed according to the rule above laid down. The case will therefore be remitted to the common pleas division for a new trial upon the single question of the amount of damages to which the plaintiff is entitled.

(100 Md. 1) BANKERS' LIFE INS. CO. OF CITY OF NEW YORK v. MILLER, to

Use of RUDDELL. (Court of Appeals of Maryland. Nov. 18, 1904.) LIFE INSURANCE-REPRESENTATIONS AS TO HEALTH-MATERIALITY-QUESTION FOR

COURT OR JURY-INSTRUCTIONS.

1. The representations in an application for life insurance as to the health of the applicant are not warranties of their truthfulness, where they are not made so in the application, and are not referred to in the policy issued thereon.

2. Though the materiality of the representations in an application for life insurance as to the health of the applicant is ordinarily a question for the jury, yet, where it is manifest from the uncontradicted evidence, or from the nature of the representations themselves, that they are material to the risk, it is the duty of the court to so instruct the jury.

3. A material misrepresentation made by an applicant for life insurance, in reliance on which a policy is issued, avoids the policy, though the applicant did not, at the time the representation was made, know that it was false.

Appeal from Baltimore Court of Common Pleas; Henry Stockbridge, Judge.

Action on a policy of life insurance by Robert L. Miller, for the use of Thomas C. Ruddell, against the Bankers' Life Insurance Company of the City of New York. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PEARCE, and SCHMUCKER, JJ.

E. Allen Sauerwein, Jr., and Charles W. Henisler, for appellant. Thomas C. Ruddell and Martin G. Kenney, for appellee.

SCHMUCKER, J. This is an appeal from a judgment of the court of common pleas of Baltimore City in favor of the appellee upon a policy of life insurance issued by the appellant. The policy was issued on December 6, 1901, and it insured for $3,000 the life of the appellee's wife, Kate Miller, who died within six months thereafter. The appellee having brought suit upon the policy, the appellant filed the general issue pleas, and also a special plea asserting that Mrs. Miller had induced it to issue the policy by falsely and fraudulently representing at the time of her application therefor that she was in good health, and was not afflicted with any disease or disorder tending to shorten life, when she was in fact not then, nor when the policy was issued, in good health, but was at those times suffering from and afflicted with cancer of the uterus-a disease which does tend

to shorten life. The quarterly premiums which fell due during the lifetime of the insured appear to have been paid, and after her death due proof of that fact was furnished to the appellant. The sole defense made to the suit was that the insured had induced the appellant to issue the policy to her by false representations material to the risk.

3. See Insurance, vol. 28, Cent. Dig. §§ 540, 545.

It appears from the record that after Mrs. Miller had, at the suggestion of one of the appellants' solicitors, sent in a written application for the policy, the appellant sent Dr. Craighill, its medical examiner, to make an examination of her physical condition. The doctor went to her residence for that purpose, taking with him a printed series of interrogatories, which he put to her, and wrote down her answers in detail in her presence. She then signed the paper containing the questions and answers, and the doctor attested her signature, and also appended over his own signature a certificate of having made the examination on December 4, 1901, and a recommendation of the applicant for insurance. Two days after the receipt by the appellant of this report and recommendation, it issued the policy. This report of the physician's examination of Mrs. Miller was put in evidence in the case, and a copy of it' appears in the record. It shows that she was asked whether she had ever had cancer or tumors or ulcers of any kind, or any menstrual disorder, or symptoms of uterine or ovarian disease; also whether she had ever been under treatment at any asylum, cure, or sanitarium. To each of these questions she answered in the negative. She also stated in response to appropriate interrogatories that Dr. F. G. Moyer was the last physician whom she had consulted, and that the consultation had been during childbirth. One of her answers stated that her youngest child was then eight years old. Another answer stated that she was in good health, as far as she knew, and still another answer stated that her mother was then 75 years old and in good health. Dr. F. G. Moyer was called for the defense, and testified that he had attended Mrs. Miller as a physician for 17 or 18 years prior to her death; that he had performed a surgical operation on her at her residence on October 24, 1900, to remove a malignant growth from her uterus that was jeopardizing her life, and that she was then suffering from a cancer at the neck of the womb, and had been having very severe hemorrhages from that cause, although he did not think that she knew the true nature of her disease; and that in December of the same year it became necessary to perform a second operation upon her. He further testified that he explained to her the necessity for the second operation, and advised her to go to the City Hospital to have it performed, as it could be done better there; that she went to the hospital, where the operation was performed in his presence by Dr. Thomas Opie. He further testified that he continued to attend her for some time after the second operation, and that she continued to have hemorrhages from time to time until her death, which was caused by the cancer. He also said that the last time he had attended her for childbirth was seven or eight years before her death. Dr. Thomas Opie was then called as a witness for the de

fense. After stating that he had been dean of the College of Physicians and Surgeons for 32 years, he said that he had performed the operation for carcinoma of the cervix uteri on Mrs. Miller in December, 1900. He produced written notes of the operation, which he said had been dictated at the time by him to his assistant, by whom they were taken down as dictated. On these notes, under the head of "Family History," it is stated that the patient's mother died of carcinoma of the womb. It is also stated on the notes: "Patient states that she has noticed the above symptoms [excessive hemorrhage, constipation, etc.] for past year or eighteen months." Dr. Jerome T. Atkinson, of New York, the medical director of the appellant, testified on its behalf that no policy of insurance is ever issued by it, except upon an application and a medical examination of the applicant approved by him; that he had seen and considered the application and medical examiner's report in the case of Mrs. Miller, and, having come to the conclusion therefrom that the applicant was insurable, he stamped his approval on it, which was equivalent to a permission to the policy department of the appellant to issue the policy thereon; and that the policy was in fact so issued. Robert F. Moore, the general manager of the appellant, also identified the application of Mrs. Miller, and the examiner's report thereon, as the papers upon which the policy was issued. The testimony of these physicians and of Robert F. Moore is entirely uncontradicted.

Two exceptions appear in the record, but the appellant only insisted at the hearing in this court upon the one taken to the court's action upon the prayers. At the close of the evidence, the plaintiff and defendant each offered three prayers. The court granted all of the plaintiff's prayers, and rejected the defendant's first and second prayers, and granted its third one after having first modified it. The plaintiff's first prayer instructs the jury to render a verdict in his favor if they find from the evidence the issue of the policy, the death of the insured, and the furnishing of due proofs thereof to the defendant, unless they find that the insured induced the defendant to issue the policy by fraud or misrepresentation that was material to the risk; and his second prayer asserts that the burden of proof of the fraud or misrepresentation is upon the defendant. His third prayer correctly states the measure of damages in the event of a verdict in his favor. The defendant's first prayer asks the court to take the case from the jury for want of legally sufficient evidence to sustain the plaintiff's case, and its second prayer asserts that if the jury find that the insured made false representations as to her health when applying for the policy, in denying that she had the disease, or the symptoms thereof, which resulted in her death, then the representations were as to matters

material to the risk, and the verdict must be for the defendant. The third prayer embodies the proposition that if the jury find that the insured, in her application for the policy, made untrue or fraudulent statements material to the risk, their verdict must be for the defendant, unless they further find that the defendant knew the truth in regard to such statements when it issued the policy. The court modified this prayer so as to require the jury to find that the statements made by the insured for the purpose of procuring the policy were known to her to be untrue or fraudulent, and that they were material to the risk, in order to find for the defendant.

The representations made by Mrs. Miller in the present case were not warranties. They were not such on their face, nor were they made part of the policy by any reference to them contained in it. They were simply representations collateral to the contract, and the law does not require them to have been strictly and technically accurate; but it does require them to have been essentially and substantially true, in order to support the policy issued in reliance upon them, if they relate to matters material to the risk. The materiality of such representations is ordinarily a question for the jury, but if it be palpable and manifest from uncontradicted testimony, or from the nature of the representations themselves, that they are material to the risk, the court would be warranted in so instructing the jury. Mut. Ins. Co. v. Deale, 18 Md. 26, 79 Am, Dec. 673; Fidelity Ins. Co. v. Ficklin, 74 Md. 172, 21 Atl. 680, 23 Atl. 197; Lutz v. Metropolitan Life Ins. Co., 186 Pa. 527, 40 Atl. 1104; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 401; Philips on Insurance, § 342. In view of the uncontradicted evidence to which we have referred, we think that in the present case the question of the materiality of the representations was erroneously submitted to the jury by the court below in granting the plaintiff's first prayer, and the unmodified part of the defendant's third prayer.

The cardinal question raised by the action of the court on the prayers is whether it was proper to require the jury, in addition to finding the fact of the representations alleged to have been made by Mrs. Miller, and their materiality to the risk, to go further, and find that the representations were known to her to be untrue and fraudulent when she made them, in order to find a verdict for the defendant. The learned judge below required the jury to so find by the rejection of the defendant's third prayer as offered, and modifying it as he did before granting it; and he, in effect, made the same ruling in granting the plaintiff's first prayer. These rulings on the prayers were, in our opinion, erroneous. The better authorities agree that a material misrepresentation made by an applicant for life insurance, in reliance on which

a policy is issued to him, avoids the policy, whether it be made intentionally, or through mistake and in good faith. This doctrine rests upon the fact that, even if the untrue material representation be innocently made, it deceives the insurer, who relies upon it, and thus the risk which he actually assumes is different from the one which the action of the applicant in making the representation led him to suppose he was assuming. May on Insurance, § 181; Bliss on Life Insurance, §§ 48, 49; Phillips on Insurance, § 537; Carter v. Boehm, 3 Burrows, 1909; Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381; Am. & Eng. Encycl. of Law, vol. 16 (2d Ed.) p. 933.

The uncontradicted evidence in this case to which we have referred establishes the fact that Mrs. Miller, when she was an applicant for the policy sued on, made untrue representations to the defendant in reference to the state of her health, which were not only material, but were vital, to the risk, and that the policy was issued to her in reliance upon those representations. It is difficult to understand how she could have made some of those representations in ignorance of their untruth. But be that as it may, it is irrational to suppose that the appellant would have issued the policy if it had been apprised of the true state of the facts to which the representations related. The same effect was produced on the appellant as if the representations had been fraudulent, for it was induced by them to enter into a risk which it would have rejected if it had been properly informed, and it ought not to be held to a risk which it assumed in that manner.

The judgment appealed from will be reversed because of the erroneous action of the court below upon the prayers, and, in view of the uncontradicted evidence as to the fact of the untrue representations made by the applicant for the insurance, and the evident materiality of the subject to which they relate, we think that no recovery ought to be had upon the policy sued on, and we will not send the case back for a new trial. Judgment reversed, with costs, without a new trial.

1. Code 1860, art. 45, §§ 1, 2, provided that the property belonging to a married woman should be held by her for her separate use, with power to devise the same as a feme sole, and that, if she died intestate without issue, her husband should have a life estate in her real property, and her personal property should vest in him absolutely. Held, that a vested fee-simple estate in remainder, subject to an intervening life estate, the title to which was held by a woman who was married while such act was in force, constituted property "belonging to her" within such act, and on her death intes

tate and without issue her surviving husband was entitled to a life estate therein.

Appeal from Circuit Court, Anne Arundel County, in Equity; James Revell, Judge.

Case stated between Walter Snyder and William E. Jones. From a judgment in favor of the defendant, plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE PEARCE, SCHMUCKER, and JONES, JJ. Frank H. Stockett, for appellant. Robert Moss, for appellee.

McSHERRY, C. J. This is a case stated under equity rule 47, as embodied in section 184, art. 16, of the Code of Public General Laws. The facts are as follows: Charles Clagett died intestate in 1847, seised and possessed of real estate, and leaving a widow and three children. His widow, whose name was Eliza, married, in 1850, M. S. Robinson. The children were Mary R., Annie C., and Samuel T. Clagett. Samuel T. Clagett died in 1852, intestate and unmarried, and his one-third undivided interest in his father's real estate vested in his two sisters, subject to the dower of his mother. In September, 1860, Mary R. Clagett, who then owned, by descent from her father and brother, a onehalf undivided interest in the real estate left by her father, married Walter Snyder, and on May 23, 1863, she died intestate, leaving her husband and an infant daughter, named Carrie, surviving her. In 1865 Annie C. Clagett filed a bill in equity in the circuit court for Anne Arundel county against her mother and the latter's second husband, and against Walter Snyder, the surviving husband of her deceased sister, Mary R., and against Carrie Snyder, the infant daughter of that deceased sister, praying for a partition of the lands of which Charles Clagett had died seised and possessed. In that proceeding, amongst other things, it was adjudged, ordered, and decreed that Walter Snyder, in right of his late wife, Mary R. Snyder, should hold in severalty, and not jointly or in common with the other parties to the suit, for and during his natural life, with remainder in fee to Carrie Snyder, the infant child and sole heir at law of the said Mary R. Snyder, deceased, all that parcel of land in the proceedings mentioned, which was described in the return of the commissioners and the plat and certificate of survey accompanying the same as lot No. 1; 512 acres, part thereof, being incumbered with the interest of the widow, Eliza Robinson, therein. Annie C. Clagett afterwards married Richard T. Hardesty, and died March 19, 1899, without children, but leaving her husband surviving her. Carrie Snyder, the granddaughter of Charles Clagett, married William E. Jones in February, 1881, and died intestate and without issue in December of the same year. In July, 1900, a bill was filed to procure a decree directing the sale

of the real estate of Annie C. Hardesty, formerly Annie C. Clagett, and all her right, title, and interest in lot No. 1, above alluded to, was sold to Walter Snyder, who already had a life estate therein in virtue of his survivorship as the husband of Mary R. and under the decree in the partition proceeding. The question for decision is, what interest, if any, has William E. Jones, the surviving husband of Carrie Snyder, in lot No. 1, which has been awarded to Walter Snyder for life, with remainder in fee to his aforesaid daughter, Carrie?

Carrie Snyder, as the sole heir at law of her mother, Mary R., took, upon the latter's death, a vested fee-simple estate in an undivided one-half of her grandfather's property, subject to the dower of her grandmother in part thereof, and also subject to the life interest of her father, Walter Snyder. When the decree of partition was passed in 1866, she was allotted in severalty a fee-simple estate in lot No. 1 in remainder, subject to the same life estate, and, as to a part, subject to the dower of her grandmother. She subsequently married, and thereafter died intestate. The title having descended to her on the part of her mother, when she (Carrie), the daughter of Walter Snyder and the wife of William E. Jones, died intestate, the estate which she thus acquired vested in her aunt, her mother's sister, Annie C. Article 47, Code 1860. The interest of the latter was sold after her death, and the question is, did the absence of a seisin or actual possession by Carrie Snyder, together with the intervening life estate of Walter Snyder, her father, and the intervening dower of her grandmother, prevent her husband, William E. Jones, from acquiring a life estate in lot No. 1, subject to the prior life estate expressly allotted to Walter Snyder, the surviving husband of Mary R. Snyder, and the father of Carrie? If the common law prevailed, there would be no difficulty in answering the question in the affirmative. A tenancy by the curtesy of England is defined by Blackstone to arise where a man marries a woman seised of an estate of inheritance-that is, of land and tenements in fee simple or fee tail-and has by her issue born alive, which was capable of inheriting her estate. 2 Bl. Comm. 126. The same learned commentator observes (page 127) there are four requisites necessary to make a tenancy by the curtesy: marriage, seisin of the wife, issue, and death of the wife. The marriage must be canonical and legal; the seisin of the wife must be an actual seisin; the possession of the land must not be a bare right to possess, which is seisin in law, but an actual possession, which is a seisin in deed. And therefore a man cannot be tenant by the curtesy of a remainder or reversion. When Mary R. Clagett married Walter Snyder in September, 1860, she owned, as stated above, a one-half undivided interest in the real es

tate of which her father died seised and possessed, subject to her mother's dower. At that time the Code of 1860 was in force. By sections 1 and 2 of article 45 of that Code it was enacted that the property, real and personal, belonging to a married woman at the time of her marriage, or which she might subsequently acquire in the modes there mentioned, she should hold for her separate use, with power of devising the same as fully as if she were a feme sole, "provided that if she died intestate and leaving children her husband shall have a life estate in her property, real and personal, but if she die intestate leaving no children her husband shall have a life estate in her real property and her personal property shall vest in him absolutely." This legislation completely destroyed the common-law tenancy by the curtesy (Mason v. Johnson, 47 Md. 347), though earlier enactments protecting the property of the wife from seizure to satisfy debts of the husband did not interfere with that tenancy (Logan v. McGill, 8 Md. 469). She had the right to devise her real estate as fully as if she were a feme sole. Shull v. Murray, 32 Md. 9. That right was wholly inconsistent with such a tenancy, because it permitted her to give her property by will to whom she pleased, to the total exclusion of her husband. The right to thus dispose of her property continued uninterruptedly until the adoption of Acts 1898, p. 1081, c. 457. But the power to exclude by devise the husband from any interest in the wife's real estate was not the only feature of the legislation embodied in the Code of 1860. If she died intestate, and leaving no children, her husband took a life estate in her realty, and her personal property vested in him absolutely; and this, too, without reference to her ever having had issue or ever having been seised in deed. A statutory life estate was thus substituted for the common-law tenancy by the curtesy. And that interest is now called the "husband's dower." Acts 1904, p. 261, c. 151. If the tenancy by the curtesy no longer exists by reason of the legislation to which we have alluded, then the qualities and characteristics incident to and inseparable from such a tenancy at the common law are not included in the components of the distinctly different statutory life estate created by the Code of 1860. Indeed, they are of necessity prescinded from it. It follows, therefore, that only such conditions must exist as the stat ute prescribes to support the last-named estate, and that the attributes which are predicable of the common-law tenancy are no longer requisite.

What, then, was necessary after the Code of 1860, and prior to the adoption of Acts 1898, p. 1081, c. 457, to entitle the husband to a life estate in the real property owned by the wife? The inquiry is confined to the period of time just named, because whatever rights accrued to William E. Jones, the surviving