Opinion of the Court.

that he was going to kill his wife if she didn't go home with him, but was not in the act and doing that at the time he was killed, that clause of the policy does not apply."

This instruction correctly states the law. The death must in some way come as a consequence of the violation or attempted violation of the criminal law, and the stipulation does not apply when it is simply contemporaneous and in no manner connected with the alleged violation or attempt to violate. For instance, if the deceased had started with the avowed intent to kill his wife, and while walking down the street a tree had fallen and killed him, the fact that he was starting upon an intentional violation of the law would not make this stipulation applicable, because the cause of his death would be entirely disconnected from the criminal act. So here, whatever may have been the general thought and purpose running in his mind as he went to the house where his wife was, his act in going into and stepping out of the water closet was in no manner connected with or part of an attempt to carry out any criminal purpose, and at that time came the shot, intentional or accidental, which killed him.

These are the substantial matters presented in the record. There are one or two minor questions. For instance, when the undertaker was on the witness stand, the defendant produced a gun and asked him to show the jury how the mark which he said he found on the face of the deceased could be caused, and the gun was used for that purpose. On cross-examination it appeared that his arm was not long enough to reach the trigger, and, therefore, to fire it off in the position in which he had placed it he needed a pencil or something of that kind. Subsequently, the plaintiff introduced testimony tending to show the length of the arm of the deceased and the improbability of his being able to reach the trigger, with his face on the muzzle, as described by the undertaker, which testimony was objected to on the ground that the gun had not been identified as the one which had caused the death, but the objection was overruled and the testimony admitted. There was testimony subsequently offered by her as to its identity, but that testimony was, to say the least, not clear and satisfactory, so that it cannot be said

Opinion of the Court.

that the gun was fully identified as the one which caused his death. Still, we cannot think that this furnishes a sufficient ground for reversing the judgment. The defendant produced the gun, and while it cannot be said that the mere production carried with it a declaration that this was the gun which caused the death, yet it certainly suggested the fact, and if not so it ought to have offered testimony to that effect. It presented the gun for use and illustration before the jury, and there was no material error in permitting the plaintiff to use the same gun for the purposes of other illustration, especially when she followed that with testimony tending, although, perhaps, only slightly, to identify it.

Another matter is this: The plaintiff in her proofs of loss stated that the deceased came to his death by suicide, and to that effect was the verdict of the coroner's jury. With respect to this matter the court charged that there was no estoppel; that the plaintiff could explain the circumstances under which she signed the statement, and that while standing alone it would justify a verdict for the defendant, yet if explained and the jury were satisfied that the death did not arise from suicide, she was not concluded by this declaration. We see no error in this ruling. None of the elements of estoppel enter into the declaration. The condition of the defendant was not changed by it, and if under a misapprehension of facts she made a statement which was not in fact true, she could explain the circumstances under which she made the statement and introduce testimony to establish the truth.

Some other matters are mentioned in the brief of plaintiff in error, but nothing that we deem of sufficient importance to deserve notice. We see no error in the judgment, and it is

Affirmed.

Statement of the Case.

TEXAS & PACIFIC RAILWAY COMPANY v. HUMBLE.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 177. Argued March 7, 8, 1901. - Decided April 8, 1901.

Where a married woman had resided in Arkansas for many years, and, just as she was leaving the State to join her husband, who had taken up his residence in Louisiana, was injured through the alleged negligence of the defendant railway company, and brought an action to recover damages in a state court in Arkansas, which, on the application of the company, was removed into the Circuit Court of the United States for the Western District of Arkansas, the rule of decision was the law of Arkansas, the place of the wrong, and of the forum, and not the law of Louisiana. By the law of Arkansas, plaintiff was entitled to bring the action in her own name and without joining her husband. And if her husband should subsequently bring suit in Louisiana on the same cause of action, it is not to be assumed that the courts of that State would not recognize the binding force of the judgment in Arkansas.

By the legislation of Arkansas the earnings of a married woman arising from labor or services done and performed on her sole account are her separate property, and although the statutes may not have deprived the husband of the services of the wife in the household, in the care of the family, or in and about his business, they have bestowed on her, independently of him, her earnings on her own account, and given her authority to acquire them.

As the evidence in this case tended to show that plaintiff for some years had been carrying on business on her own account, which had been suspended by reason of temporary illness for a short time just previous to the accident, the Circuit Court did not commit reversible error in instructing the jury that, if they found for the plaintiff, they might take into consideration in assessing her damages, among other things, her age and earning capacity before and after the injury was received, as shown by the proofs. On this record the earning capacity referred to presumably had relation to earnings on plaintiff's own account, and if defendant wished this made more explicit, it should have so requested.

THIS was an action brought by Emma Humble against the Texas and Pacific Railway Company in the circuit court of Miller County, Arkansas, to recover compensation for personal injuries sustained by her in the defendant's station at Texarkana, Arkansas, on April 9, 1898, by reason of defendant's negligence, and removed on defendant's petition to the

Statement of the Case.

United States Circuit Court for the Western District of Arkansas. Plaintiff obtained judgment, which was affirmed by the Circuit Court of Appeals for the Eighth Circuit, 97 Fed. Rep. 837, and thereupon this writ of error was sued out.

The evidence, in addition to establishing the circumstances of the infliction of the injury, tended to show that Mrs. Humble had been a resident of Arkansas for nearly ten years; that she had kept a boarding house, and a hotel at Pine Bluff, in said State, for some years, conducted by her as her sole and separate business, and in her name, until she left Pine Bluff for Texarkana, in October, 1897, where she remained until April 9, 1898, and during this time began to run a hotel, but became temporarily ill, and gave it up. Her husband had taken up his residence in Louisiana at the time of the injury, and she had then started to go to him.

Prior to the trial, the railway company moved the court to compel Mrs. Humble to make her husband a party plaintiff, but the court overruled the motion, and defendant excepted. Defendant objected to all evidence tending to show that plaintiff's capacity to labor was diminished by the injury, and saved an exception to its admission.

At the close of the evidence defendant requested the court to give the jury certain instructions, of which the third, fourth, sixth and seventh are as follows:

"3. The plaintiff cannot recover any damages on account of her injury diminishing her capacity to labor and earn money, because there is no evidence showing any capacity to labor or earn money at and just before she was injured.

"4. In this case the plaintiff being a married woman and her husband not joining in the suit, she cannot recover any damages on account of her diminished capacity to labor and earn money.

"6. The plaintiff being a married woman, and her husband not having joined her in this suit, and she and her husband having her present and prospective home in the State of Louisiana, then the law of Louisiana would apply as to the right to recover damages by reason of the fact that plaintiff's capacity to labor in future has been lessened by the injury, and by the law of that State she cannot recover such damages.

Opinion of the Court.

"You will, therefore, allow nothing as damages for any diminished capacity to labor and earn money.

"7. Plaintiff cannot recover anything on account of her diminished capacity to labor.

"Because there is neither pleading nor evidence showing that plaintiff was engaged in any business, profession or occupation. "And her lessened capacity to perform household duties cannot be the basis of plaintiff's recovery."

The court declined to give these instructions, and each of them, and the defendant excepted to the refusal of each.

The court instructed the jury as follows: "If you should find for the plaintiff, in assessing her damages you will take into consideration her age and earning capacity before and after the injury was received, as shown by the proofs, her physical condition before the injury, and her physical condition after the injury, and the nature and character of the injury she received, whether it be permanent or temporary in its nature, and find for her such sum as will fairly and reasonably compensate her therefor, including therein fair and reasonable compensation for any physical and personal pain and suffering she may have undergone as the result thereof."

Defendant excepted to so much of this portion of the charge as allowed the jury to "take into consideration her age and earning capacity before and after the injury was received as shown by the proofs."

Mr. John F. Dillon for plaintiff in error. Mr. Winslow F. Pierce and Mr. David D. Duncan were on his brief.

Mr. Oscar D. Scott for defendant in error.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

Plaintiff in error contends that the judgment should be reversed because the Circuit Court erred in declining to direct the joinder of the husband; in applying the law of Arkansas in the trial of the case and not that of Louisiana; and in allowing impaired earning power to be considered as an element of recovery.