15 La. Ann. 333, Succession of McCall, 19 La. Ann. 507, and Marchand v. Casanave, 22 La. Ann, 626, are directly in point.

In Keenan v. Whitehead, 15 La. Ann. 333, the defendant was allowed a suspensive appeal upon giving his bond with good and solvent security according to law.

He gave bond in the sum of $2,250, which lacked less than $20 of being the proper amount. The court dismissed the appeal. Merrick, C. J., said:

"The condition upon which a party is entitled to an appeal is that he execute his bond in such sum as ordered by the judge granting the appeal.

"Until he has complied with that order, his appeal is not perfect in this court, either as a suspensive or a devolutive appeal. Code Prac. arts. 573, 574, 575.

"It is otherwise where the appellant has complied with the judge's order, and given bond in the sum fixed. In such case we hold that, if the bond is insufficient for a suspensive appeal, still it is good as a devolutive appeal, because it is the amount fixed by the judge"-citing a number of cases.

This case was followed in Succession of McCail, 19 La. Ann. 507, and in Marchand v. Casanave, 22 La. Ann. 626, where the deficit in the suspensive bond was about $10. Hence the cases of Jorda v. Judge, 29 La. Ann. 778, and Woodville v. Klasing, 51 La. Anc. 1057, 25 South. 635, follow the unbroken line of jurisprudence on this subject.

While we appreciate the possible hardship that may result from the dismissal of defendant's suspensive appeal, such a consideration does not warrant a departure from well-settled rules of practice and a substitution of the discretion of the court in each particular case for that legal certainty so desirable in judicial proceedings.

It is therefore ordered that the rehearing applied for in this case be refused.

(112 La. 568)

No. 14,996.

ing it, undertakes to do the work without it, and is injured, he cannot recover against the master. (Syllabus by the Court.)

Appeal from Eighteenth Judicial District Court, Parish of Acadia; Conrad De Baillon, Judge.

Action by George A. Schoultz against the Eckardt Manufacturing Company, Limited, to recover for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

Fenner, Henderson & Fenner and Chappuis & Holt, for appellant. Story & Pugh, for appellee.

PROVOSTY, J. Plaintiff was an experienced workman, of 15 years' standing. He was molder and planer foreman, and in that capacity had charge of the workmen, machinery, etc., on one of the floors of defendant's sash and door factory. He states that his further duty was "to fix belts and keep the machines in running order." He had been in defendant's employ some 14 months, discharging those duties, when he was called upon to mend one of the belts of one of the saw tables, and had four of his fingers cut off in attempting to do the work. As soon as his hand got well, he went back to his same work in defendant's mill, at the same wages, and worked for some time, until he quit of his own accord. During this time he acknowledged that he himself was to blame for the accident. He denies that he made such admission, but three witnesses testify to it. Afterwards he changed his mind and brought this suit, 11 months after the accident.

The saw table in question is 5 feet long, 3 feet wide, and 3 feet 6 inches high. It is a substantial structure; the framework underneath consisting of three thick uprights on each side, braced at top and bottom by thick crosspieces, both on the sides and on the ends. The saw-a circular saw, 14 inches in diameter-is under the table, the blade protruding through a longitudinal slit in the middle of the table. The belt to be mended

ited.

(Supreme Court of Louisiana. April 25, 1904.)

MASTER AND SERVANT-INJURY TO SERVANT PROXIMATE CAUSE-PROTECTION AGAINST INJURY-DUTY OF MASTER-BISKS ASSUMED.

1. If a break occurs in machinery, and workman undertakes to mend it, and is injur ed, the causes which brought about the break are only the remote causes of the injury, and juridically are not its causes at all.

2. The master is under no obligation to provide a hood or guard for inner and ordinarily inaccessible parts of machinery.

3. If there is a safe and an unsafe way of doing a thing, and the servant knows it, or ought to know it, and chooses the unsafe, and is injured, he cannot recover against the master for the injury.

4. The master is under no obligation to keep his premises so lighted that all repair work may be done without the necessity of additional light. If such additional light is needed for repair work, and the servant, instead of procur36 SO.-38

of the ends. It could be reached for mending, without any danger from the saw, from that side of the table on which it was, and from either end of the table. Plaintiff chose the other side of the table, from which he could not reach the belt without stretching his arms across the line of the saw. He got down on his knees, and put his head and arms into the framework of the table. The saw was then above him, to his right. What he did while in this position, and what happened, we will let him describe himself: "I got hold of the belt and commenced to lace it, and I was pulling on it, when the lacing string got caught in some way, and I could not pull it very easily. So I took a good hold of it, and I wrapped it round my hand or fingers as a man usually does when he wants to pull hard, and I pulled with all my

might with my hand, holding it down with the other; and when I pulled so hard the lacing string broke, and it broke with such force that my hand flew up and struck against the saw, that was running, and it took my fingers off."

The negligence charged against defendant is alleged to have consisted in

(1) That the saw was running at an excessive rate of speed.

(2) That it was not properly hooded or guarded.

(3) That the machine was not geared with a countershaft, so that it could be stopped without stopping the entire machinery of the mill.

(4) That the place was not sufficiently lighted.

(5) That rubbish had been suffered to accumulate near the table, whereby access to the belt was cut off from the safe side of the table, and plaintiff was put under the necessity of doing the work from the dangerous side.

Plaintiff's argument on the first ground is that, if the speed of the machine had been less, the belt might have held out until a time when there might have been no rubbish to prevent his doing the work from the safe side, and that in that event he would have escaped injury. Here, in truth, is a string of conjectures. But assuming them all to be established facts, the simple legal answer is that after the belt had given way, and thereby lost its connection with the machine, the speed of the machine ceased to be an element in the problem, and that therefore, as a cause of the injury, the breaking of the belt stands in the same relation to what followed as does any other antecedent, conditional fact-as the fact, for instance, that plaintiff was born. Had the belt not broken at the time it did, there would have been at that time no belt to mend, and no injury; and so, had plaintiff never been born, there would have been no plaintiff, and no injury. One group of causes in the chain of causation culminated in the breaking of the belt. Another group was set in motion by the attempt to mend the belt. Juridically the two groups are entirely disconnected, and the law looks only to the latter-in other words, to the immediate or proximate cause. Schwartz v. Railroad Co., 110 La. 534, 34 South. 667.

The second ground is equally without merit. The evidence shows-and besides the fact is of itself patent-that the framework of the table is a sufficient guard to the portion of the saw under the table, which is the part that did the injury. It would be exacting too much of an employer to require him to protect such inner and inaccessible parts of machinery, with which no one can come in contact except by such imprudent conduct as that of plaintiff in this case.

As to the third ground, nothing shows that it is negligence not to gear machines

like the one in question with a countershaft. The testimony would go to show that machines which run continually are not usually so geared, and that the machine in question ran continually. Furthermore, the testimony shows that this machine is provided with an idler, by means of which it can be disconnected from the rest of the machinery of the mill just as effectually as by means of a countershaft. Beyond this, it appears that plaintiff had the right to stop the machinery of the mill, if necessary to avoid danger in the work of repair. If, therefore, he incurred any extra risk, he did so voluntarily. If there is a safe and an unsafe way of doing a thing, and the servant knows it, or ought to know it, and chooses the unsafe, and is injured, he cannot recover against the master for the injury. Jenkins v. Maginnis Mills, 51 La. Ann. 1011, 25 South. 643.

The complaint as to the want of sufficient light has not reference to sufficient light for the regular operation of the mill, but to sufficient light for doing with safety the work of mending the belt. Such being the nature of the complaint, the answer to it is obvious. The master is not bound to keep his premises so lighted that any and all repair work may be done without the necessity of procuring extra light. When plaintiff undertook to do this repair work, it was for him to know whether he had enough light to do it in, and to procure additional light if needed. He was not a green hand, uninformed of the nature of the work he was called upon to do, but he was the person on his floor supposedly best informed in that regard. To him belonged the duty, in his own words, "to fix belts and keep the machines in running shape."

If the rubbish was in plaintiff's way for repairing the machine with safety, he should have asked that it be removed, or should himself have had it removed. He had ample authority for the purpose. In fact, it was his duty to see to the removal of this rubbish if it stood in anybody's way.

The judgment appealed from is set aside, and the suit of plaintiff is dismissed, with costs in both courts.

No. 15,083.

(112 La. 572)

In re NEREAUX'S ESTATE. (Supreme Court of Louisiana. April 25, 1904.) EXECUTORS AND ADMINISTRATORS - RIGHT TO ADMINISTER-APPLICATION OF WIDOW

OPPOSITION PROCEEDINGS.

1. Where the application of the widow in community for the administration of the estate of her deceased husband, who has died childless and intestate, is opposed by one alleging that the decedent was his brother, the opponent must prove lawful filiation, since the widow inherits the estate, and is entitled to the administration in preference to all natural relations save those of the descending line.

(Syllabus by the Court.)

Appeal from Twenty-First Judicial District Court, Parish of Iberville; E. B. Talbot, Judge.

Application by the widow in community of Homer Nereaux, deceased, to be appointed administratrix of decedent's estate. The application was opposed by Norbert Nereaux, and from the judgment opponent appeals. Affirmed.

Calvin K. Schwing, for appellant. Louis Lozano, for appellee.

MONROE, J. Homer Nereaux died in October, 1903, intestate and without issue, and the application of his widow in community to be appointed administratrix of his estate was opposed by Norbert Nereaux, who alleges that he is the brother and nearest heir of the decedent. To this the widow answers, denying the alleged filiation, and the opposition was tried upon the issue so made and decided adversely to the opponent, who has appealed.

The evidence shows that a good many years before the Civil War Theodule Pruett and Nancy Madden were living in Iberville parish as man and wife; that Nancy Madden left Pruett, and thereafter lived with Edmond Nereaux as his wife; and that Homer Nereaux, the decedent, and another son, were born of that connection during the life of Pruett. It further shows that Nancy Madden died, and that Edmond Nereaux then married Pauline Demolet, by whom he had several children, including the opponent. There is no proof that Nancy Madden was married to Pruett, or that she was divorced from him, but it is shown that it was common rumor that Edmond Nereaux had taken Theodule Pruett's wife, and it is not shown that she was ever married to Nereaux.

In order to entitle the opponent to a judġment, he should show that the decedent was his lawful brother, either of the whole or of the half blood, for "the surviving wife is called to the inheritance, and preferred to all the natural relations of the husband, and he to all her natural relations, except those of the descending line." Victor v. Tagiasco's Executor, 6 La. 542; Succession of Ducloslange, 2 La. Ann. 98; Montégut v. Bacas, Exctr, 42 La. Ann. 160, 7 South. 449.

The judge a quo was of the opinion that the required proof had not been made, and we concur in that conclusion. The judgment appealed from is accordingly affirmed.

the answerer partakes of intoxicating liquors only occasionally and temperately.

2. A clause in a life insurance policy reading, "If I die by my own hand or act, voluntary or involuntary, sane or insane," is a mere ordinary suicide clause, and is not violated by an act done without suicidal intent.

3. The pronounced leaning of our jurisprudence is against finding that there has been suicidal intent, where the facts will possibly admit of a different construction.

4. This court is extremely reluctant to disturb, on writ of review, the findings of fact of the court of appeal.

On Rehearing.

5. The Supreme Court has authority to review conclusions of fact reached by the court of appeal, but only does so in exceptional cases. State ex rel. Satcho v. Judge, 21 South. 690, 49 La. Ann. 235.

6. In reaching their conclusions as to whether a person has committed suicide, courts are not tied down by the rigid rules of the criminal law. They are authorized to act upon circumstantial as well as direct evidence. The presumptions upon which they act should be weighty, precise, and consistent.

7. The death of a person resulting from morphine administered by himself is in one sense death from his own hand, but it is not necessarily suicide. Kling v. Accident Association, 29 South, 332, 104 La. 766.

8. The mere fact itself that an application for insurance may be annexed to and made part of the policy of insurance does not carry with it necessarily, as a consequence, that all the statements and declarations contained therein should be held to be "warranties," though the failure so to annex the application and make it part of the policy would leave them to be dealt with as "representations."

9. When the situation is such in a particular case as will, as a matter of law, carry with it forfeiture of the policy as a penalty, that result will follow, whether it has been expressly stipulated for and declared or not.

10. Nothing in the application or policy in this case, nor in the defendant's pleadings, can be held to be admissions that the answers of the assured to questions propounded to him by the medical examiner were mere "representations" in their character.

11. A matter specifically inquired about in a question propounded by an insurance company to a party seeking to obtain a policy of life insurance, and the answer thereto, are equal to an agreement that the matter inquired about is material. and any misrepresentation in the answer will avoid the policy, though the matter may not have been really material to the risk in the particular case.

When answers made by a party in his application for a policy of life insurance to questions propounded to him by the insurance company were such as might have influenced the company in determining whether to accept the risk and in determining what premium to charge, the answers must be truthful.

Provosty, J., dissenting. (Syllabus by the Court.)

Certiorari to Court of Appeal, Third Oir

cuit.

Action by Itha Brignac and others against the Pacific Mutual Life Insurance Company of California on a policy of insurance. A judgment for defendant was reversed by the court of appeal, and defendant applies for certiorari or writ of review. Judgment of court of appeal reversed.

Lewis & Lewis, for applicant. R. Lee Garland and Edward Benjamin Du Buisson, for respondents.

PROVOSTY, J. This suit is on a policy of life insurance. It is before this court on a writ of review to the court of appeal. The defenses are that the insured committed suicide, and that he did not answer truly to the questions in his application for the policy, with reference to his being or having been a user of spirituous liquors, and that, as a consequence, the policy has been forfeited under its express terms.

The questions and answers referred to are the following:

"Q. Do you use spirituous, malt, or vinous liquors? A. No. Q. State the average quantity you use each day. A. No. Q. Have you at any time used them to excess (give full particulars)? A. No. Q. Are you now or did you intend to become engaged in the sale of the same? A. No."

The court of appeal found that these questions directed the mind of the applicant for insurance, not to an occasional or incidental use, but to an habitual or excessive use, and that a negative answer to the question, "Do you use spirituous, malt, or vinous liquors?" is not false when the answerer partakes of intoxicating liquors only occasionally and temperately; and the court found that the drinking of the insured was of the latter character. The court cites May on Ins. pp. 379, 637, 638, notes; Standard Dictionary, words "Use" and "Habit"; Union Mutual Life Ins. Co. v. Reif, 36 Ohio St. 596, 38 Am. Rep. 613, and note, pp. 615, 616, 38 Am. Rep.; Chambers v. Northwestern, etc., Ins. Co., 64 Minn. 495, 67 N. W. 367, 58 Am. St. Rep. 549.

This ruling was correct, we think, both on the facts and on the law.

On the question of suicide, the court held that a clause reading, "If I die by my own hand or act, voluntary or involuntary, sane or insane," was a mere ordinary suicide clause, and was not violated by an act not done with suicidal intent. The court cites Penfold v. Universal Life Ins. Co., 85 N. Y. 317, 39 Am. Rep. 660; 84 Am. St. Rep., note, pp. 542, 551; May on Ins. § 307; Am. & E. Ency. of L. (2d Ed.) vol. 19, p. 77.

With this ruling, again, we fully concur. With the court's ruling on the facts on the question of suicide, we are not so well satisfied. On this point we are much impressed by the very strong showing made in relator's brief. However, in view of the extreme reluctance of this court to disturb on writ of review the findings of fact of the court of appeal, and considering the pronounced leaning of our jurisprudence against finding that there has been suicidal intent where the facts will possibly admit of a different construction (Boynton v. Equitable Life Assur. Co., 105 La. 202, 29 South. 490, 52 L. R. A. 687; Leman v. Ins. Co., 46 La. Ann. 1189, 15 South. 388, 24 L. R. A. 589, 49 Am. St. Rep. 348; Phillips v. Equitable Life Ins. Co., 26 La. Ann. 404, 21 Am. Rep.

549), we have concluded not to disturb the judgment.

The judgment of the court of appeal is affirmed, and the writ of review is now dismissed at the cost of the applicant.

On Rehearing.

(May 9, 1904.)

NICHOLLS, J. Defendant presses upon us that the conclusion reached by the court of appeal as to whether or not the insured had committed suicide was not sustained by the testimony in the record, and calls upon us to set it aside.

We have the unquestionable authority, where cases are brought before us through writs of review, to review not only the conclusions of law reached by the court of appeal, but also those of fact, and we would not hesitate doing so where in our judgment the exercise of such authority would be manifestly proper. It is, however, obvious that this court was not intended to be made an appellate court through a mere change in the form, of the proceedings by which cases which had been decided below should reach us. The Constitution did not contemplate making it our duty to take up and dispose generally of cases which in character and amount would fall below our regular appellate jurisdiction. A case should present very exceptional features to induce us to do so.

We do not attempt to lay down any rule on that subject, but will leave each case brought up to be tested by its own special features. State ex rel. Satcho v. Judge, 49 La. Ann. 235, 21 South. 690.

We do not think the situation of this particular case makes it one for exceptional action. The court of appeal evidently gave to the testimony adduced proper attention. The correctness of its conclusion was not acquiesced in as a matter of course by this court on the original hearing. Our opinion shows the testimony was closely scrutinized and considered, but that, while we were much impressed by the view of that testimony submitted to us by opposing counsel, we were not sufficiently so to declare that the conclusions of fact which were reached by the court of appeal were so clearly wrong as to call for a reversal of the judgment. We have on this rehearing examined the testimony again with the same result. The testimony adduced certainly discloses a number of suspicious circumstances tending to establish that the assured committed suicide, but matters were left enough in doubt on the subject to have warranted the court be low in discarding that theory. The case on the facts, we think, is too close for us to interfere. We take occasion, however, to say that, in determining whether or not a party has committed suicide, courts can act on circumstantial evidence as well as on direct evidence and testimony, and are not tied down in the application of the same by

the rigid rules of the criminal law. The law requires, however, that the presumptions upon which they act shall be weighty, precise, and consistent. Civ. Code, art. 2288.

In the present case we think the deceased came to his death by opium poisoning, but whether it was taken by himself is not shown, nor is it shown, if taken by himself, whether this was done for the purpose of producing death, or injudiciously, and for the sake of obtaining relief of some kind. There was some evidence introduced (though not very strong in character) on which the latter theory may have been predicated.

If the opium was taken by himself for the purpose of obtaining relief, while in one sense it could be said that he had "come to his death by his own hand," it could not be said that he had committed "suicide." Kling v. Accident Association, 104 La. 766, 29 South. 332.

The district judge rendered judgment in favor of the defendant on the ground that the answers made by the insured, Armand Brignac, to the questions asked by the medical examiner of the defendant, were untrue, and that in making such answers he was guilty of a breach of the warranties of the policy. The court of appeal took a different view, being of the opinion that the statements made by Armand Brignac were mere representations, and that the answers given were not material to the risk, and were true from the standpoint of the intended scope of the questions asked.

The policy of insurance itself is on the first of four pages. On the second page there are printed three headings-the first being "Benefits and Values" (referred to in the foregoing pages of this policy); the sec ond, "Schedule of Policy Values" (this schedule applies to this policy only if free from indebtedness, but such indebtedness may be paid at any time before policy values are payable); the third, "Schedule of Extended Insurance."

Under these different headings are subordinate headings or entries. Under the heading "Benefits, Conditions and Values," for instance, are the subheadings, "Incontestability," "Payment of Premiums," "Dividends," "Assignment," "Change of Beneficiary," "Service in War," "Error in Age," “Alterations," "Loans," and "Values and Additions."

On the third page the first heading is: "Application for Insurance to the Pacific Mutual Life Insurance Company of California." Under this heading, in small type, is printed the following:

"I apply for a contract or policy of life insurance, which, if tendered, I agree to accept, and as consideration therefor offer this application, which includes answers to the Medical Examiner, and which is true and "warranted. I agree that any policy which may be granted upon this application shall not be in force until the actual payment to

and acceptance of the premium by said Company or its authorized agent while I am in the same condition of health as herein stated. I warrant: That if I die within two years from the date of such policy in consequence of having engaged in any specially hazardous occupation or employment (the specially hazardous occupations or employments herein referred to, are the handling of electric wires or dynamos, blasting, mining, submarine labor, aeronautic ascensions, Arctic explorations, the manufacture, handling and transportation of highly explosive or inflammable substances, service upon any railroad train or in switching and coupling cars, or on any steam or other vessel) without first obtaining written permission of the Company, signed by its President or Vice-President, and Secretary or Assistant Secretary, then such policy shall be null and void; that if I die in consequence of having violated law, or by my own hand, or act voluntary or involuntary, sane or insane, during such two years the only liability under said policy shall be for the net reserve held thereon computed according to the Combined Experience Table of Mortality, with interest at four per cent per annum; that in any distribution of surplus or apportionment of dividends, the principles and methods which may be adopted by the Company for such distribution or apportionment, and its determination of the amount equitably belonging to any contract which may be issued under this application, shall be and are hereby ratified and accepted by and for every person who shall have or claim any interest under the contract now proposed; that during the first year succeeding the date of any policy which may be issued hereunder, the reserve value shall be computed upon the Combined Experience Table of Mortality with interest at four per cent per annum for the term rate; that prompt notice of the death of the insured shall be given to the Company, and formal proofs on the Company's blanks be made within one year after death and no suit upon said policy shall be sustainable unless commenced within such year; that such policy shall lapse and be void if any premium or installment thereon is not paid as therein provided, and that then all previous payments shall be forfeited to the Company except as herein otherwise provided; and, further in consideration of the premises, it is understood and agreed that all right or claim for temporary insurance or any other surrendervalue than that provided in such policy is hereby waived and relinquished, whether required by the statute of any other State or not and such contract shall be held and construed at all times and places to have been made in the City of San Francisco, State of California."

Below this, to the left, are 10 paragraphs, opposite to which, to the right, are open spaces to be filled up by the party making the application; for instance: