The answer of appellant admitted the contract of insurance, as contained in the policy referred to, but denied any liability upon the policy, or that appellee was the owner or holder of the policy at the time of the destruction of the barn by fire, and pleads that, subsequent to the issuance of the policy, and before the burning of the barn, the appellee sold and conveyed the property to Ben J. Head, and then assigned to him the policy sued on, by which he parted with the title to both the property and policy; that Head sold and conveyed the property to another, the sale and conveyance being accompanied by an assignment of the policy in question, without the consent of appellant indorsed on the policy; that by the terms of the policy it is provided that in case any change should take place in the title, possession, or interest of the assured, the policy in that event should become null and void, unless otherwise provided by agreement indorsed thereon; and, further, that appellant did not, by any agreement indorsed on the policy, waive its right to declare it null and void because of a change in the title to the property. Finally, it was alleged in the answer that, by reason of such change in the title to the property, the policy became and is null and void. Appellee filed an amended petition in which it was averred that on May 17, 1912, appellee sold and by deed conveyed the property in question to Ben J. Head, and at the same time assigned and transferred to him the policy of insurance upon the dwelling house and barn, and that on July 3, 1912, appellant, by an indorsement on the policy, consented to the assignment to Head; that on August 19, 1912, Head sold and conveyed the property to J. M. Hamilton, and at the same time transferred to him the policy, to which appellant, through its local agent at Owensboro, consented, and agreed to later indorse such consent upon the policy, which was then in the hands of the Fidelity & Columbia Trust Company, but which indorsement it did not, in fact, make; that on January 1, 1914, the property was sold and conveyed by Hamilton to R. H. Ford, and Hamilton then agreed to and did assign Ford the policy, to which assignment appellant, through its local agent, again agreed, such agreement being accompanied by a promise to have such consent indorsed on the policy, with which promise it also failed to comply; that on April 22, 1914, Ford sold and conveyed the property to the appellee, the original owner and vendor, Ford assigning the policy to appellee; and that at that time appellee applied to appellant's local agent at Owensboro for its assent to the assignment of the policy from Ford to him, but that the agent informed him that he was not then acting as agent for appellant, and that the latter had determined to quit business in this state, or would soon do so. It was further alleged in the amended petition that when Ford delivered to the appel lee the deed reconveying to him the property, he also assigned and delivered to him the policy in question, and that when thereafter the barn was destroyed by fire he (Turley) was in possession of the policy and then held the title to the property covered by the policy, which restored the situation occupied by appellee and appellant to what it was when the policy was issued and delivered to the former by the latter. The facts alleged in the amended petition were also, in substance, pleaded in a reply filed by appellee to the appellant's answer. The reply, in addition, contained a traverse of the averments of the answer with respect to the alleged right of appellant to rely upon the forfeiture claimed as arising under the clause of the policy providing therefor in case of a change in the title of the property, and pleaded a waiver on the part of appellant of such right of forfeiture. By agreement of the parties a jury was waived, and the law and facts submitted to the court, the trial resulting in a judgment in favor of appellee against appellant for the $200, claimed in the petition as the loss sustained on the barn. Appellant complains of that judgment, and has moved this court to grant it an appeal, as provided by rule 20 (169 S. W. vii) of this court, adopted in conformity to the act of March 17, 1914 (Laws 1914, c. 24) regulating appeals in civil cases when the amount in controversy, exclusive of interest and costs, is as large as $200 and less than $500, which appeal, in view of the novelty of the question involved, we deem it proper to grant. The provision under which appellant seeks to enforce the forfeiture claimed in this action is in the following language: The above clause does not mean that every conceivable change that might take place in the title of the property, or assignment of the policy, without the agreement of the insurance company indorsed thereon, would have the effect to forfeit the policy. In construing this clause the courts seem to have held that many transfers which apparently come literally within its terms cannot reasonably be held to be covered thereby. Thus it has been held that such a policy provision does not apply to transfers from one joint owner to another. Cooley's Insurance Briefs, 1726; Lockwood v. Middlesex Ins. Co., 47 Conn. 553; Hyatt v. Wait, 37 Barb. (N. Y.) 29; German Mutual Fire Ins. Co. v. Fox, 4 Neb. (Unof.) 833, 96 N. W. 652, 63 L. R. A. 334; Tillou v. Kingston Mut. L. Ins. Co., 7 Barb. (N. Y.) 570; Royal Ins. Co. v. Sockman, 8 | appellant to consent, in writing indorsed on O. C. D. 404. the policy, to such reassignment of it to appellee would have amounted to a violation of the above provision of the policy, or prevented appellee from recovering the indemnity provided by the policy, if the barn had been destroyed by fire following such resale of the property and reassignment of the policy to him. If this be true, how can it be said that the latter's right to recover for the loss of the barn is affected by the sale and conveyance of the property and transfer of the policy from Head to Hamilton, from Hamilton to Ford, and from Ford back to appellee. In the first instance, it would have been unnecessary for Head to obtain the consent of appellant, indorsed on the policy, to its reassignment to appellee. In the second instance, the title to the property and policy would equally be in appellee, the person primarily accepted by appellant as the assured, and the five years, to cover which the policy was issued, had not expired. The provision in question now appears in all similar policies. Its principal object being to secure to the insurer a contracting party of its own choosing, we reasonably infer that it is intended to cover only such transfers of the property and policy as would permanently vest the interest of the person with whom the insurer contracted in another, or others, who were strangers to the transaction and with whom it had not consented to contract. It cannot be claimed that the provision in question will prevent a merchant from selling to retail customers goods covered by the policy, yet, if literally construed, it might be said to do so. Neither can it be claimed that a transfer by one partner of all his interest in the insured property covered by the policy to his copartner is such a transfer as would be covered by the clause in question. It has also been held that this clause does not cover a change in the title, whereby the interest of the insured in the Whether any sale and conveyance of the property insured is increased after the tak- lot containing the insured buildings, after the ing out of the policy, nor will it apply where one from appellee to Head, following which the property insured is conveyed by a deed appellant indorsed on the policy its consent of assignment made by the assured for the to its assignment to Head, might have given benefit of creditors, whereby the insured appellant the right to enforce the forfeiture property and the policy are both transferred now demanded is not presented for decision. to the assignee. Phoenix Ins. Co. v. Law-In point of fact, the forfeiture was not claimrence, 4 Metc. 9, 81 Am. Dec. 521. So, after ed or had because of any of such sales, alall, the point to be determined is not what transfers may be covered by the language used, but what transfers did the parties intend should be covered by it. In adopting the clause in question the parties did not have in mind a second assignment to the same party. Having issued the policy to appellee in the beginning, because under the contract he was the party insured by it, it must be assumed that appellant agreed he might stand as the party insured for the whole period of five years covered by the policy. This being true, it is not reasonable to suppose that the above clause was allowed to remain in the contract in order to protect appellant against a sale of the property or assignment of the policy, which, in the course of events, might be made to appellee himself during the life of the policy. In other words, appellee, in accepting the policy containing the provision in question, will not be presumed to have been providing against a transfer to himself; nor, on the other hand, can it be presumed that appellant intended it to provide against a transfer of the policy to the very person with whom it was then contracting. though appellant had notice of each through its Owensboro agent when made; and, having delayed such right, if any it had, until the title to the property was restored to appellee, the person with whom it originally contracted and to whom it issued the policy, it cannot, it would seem, because of any of the changes in the title referred to, escape liability on the policy for the loss sustained by appellee after its reconveyance to him. The principle here announced was recognized in Born v. Home Ins. Co., 110 Iowa, 379, 81 N. W. 676, 80 Am. St. Rep. 300, wherein it was held that, although a policy of insurance provided that it should become forfeited if the property insured were thereafter mortgaged without the consent of the company, the fact that the property was so mortgaged did not avoid the policy, as the mortgage was paid off and satisfied prior to the loss, and such payment operated to restore the property to the protection of the policy. In a footnote to the opinion the doctrine in question is more clearly recognized in the following statement of the law: "The general rule to be deduced from the weight of authority is that the violation of a condition in a policy of insurance which works a forfeiture thereof merely suspends the insurlation is discontinued during the life of the policy, and is nonexistent at the time of loss, the policy revives, the insurance is restored, and the insurer is liable, although he has never consented to a violation of the conditions in the policy, and such violation has been such that the insurer could, had he known of it at the It is clearly shown that appellant, by a porper indorsement on the policy, consented to its assignment by appellee to Head short-ance during the violation, and that if such violy after the sale and conveyance of the lot by appellee to him. If Head had subsequently resold and conveyed the property to appellee, instead of to Hamilton, and at the time reassigned to him the policy, it could not be Ins. Co. v. Schreck, 27 Neb. 527, 43 N. W. 340, 6 L. R. A. 524, 20 Am. St. Rep. 696; Omaha Fire Ins. Co. v. Dierks, 43 Neb. 473, 61 N. W. 740; Johansen v. Home Fire Ins. Co., 54 Neb. 548, 74 N. W. 866; Home Fire Ins. Co. v. Johansen, 59 Neb. 349, 80 N. W. 1047; Tompkins v. Hartford Fire Ins. Co., 22 App. Div. 380, 49 N. Y. Supp. 184. In a number of jurisdictions it has been held that, although a policy of fire insurance contains a condition avoiding it if the premises are put to a changed use, or if certain prohibited articles are placed thereon, nevertheless a change in the use of the insured premises or the keeping of prohibited articles thereon, without the consent of the insurer, if abandoned or discontinued before the loss occurs, renders the insurer liable where he has not declared a forfeiture of the policy before loss, and the increased hazard caused by such prohibited use in no way continues to affect the risk at the time of loss. In such case the insurance is merely suspended during the prohibited use of the premises and revived immediately upon its discontinuance. Joyce v. Maine, Ins. Co., 45 Me. 168, 71 Am. Dec. 536; U. S., etc., Ins. Co. v. Kimberly, 34 Md. 224, 6 Am. Rep. 325; Garrison v. Farmers' Fire Ins. Co., 56 N. J. Law, 235, 28 Atl. 8; Cumb. Valley, etc., Ins. Co. v. Schell, 29 Pa. 31; Mutual Fire Ins. Co. v. Coatesville Shoe Factory. 80 Pa. 407; Schmidt v. Peoria Ins. Co., 41 Ill. 295; Ins. Co. v. McDowell, 50 Ill. 120, 99 Am. Dec. 497; Ins. Co. v. Garland, 108 Ill. 226; Traders' Ins. Co. v. Catlin, 163 Ill. 256, 45 N. E. 255, 35 L. R. A. 595; Lounsbury v. Protection Ins. Co., 8 Conn. 459, 21 Am. Dec. 686; Phoenix Ins. Co. v. Lawrence, 4 Metc. 9, 81 Am. Dec. 521. In yet another footnote to Born v. Home Ins. Co., supra, we find this further statement of the law, more directly applicable to the facts of the instant case: "If the policy contains a condition that it shall become void upon the alienation of the insured property, without the consent of the insured, it has been generally held that, if the insured sells or assigns the property during the existence of the policy, without the consent of the insured, the insurance does not, from that fact alone, be come absolutely void, but is merely suspended, and if the insured reacquires the title before the loss, the policy is renewed and the insurer becomes again liable." icy, made permissible by the clause under which the appellant here seeks to avoid liability for the loss sustained by appellee, must be understood as relating to cases where the insured has absolutely and permanently divested himself of all interest in the subjectterest at the time of the loss, the insured matter of insurance; for if without any incannot be said to have sustained any injury; without the consent of the insurer cannot reand the person to whom a transfer is made cover, because he is not a party to the conin the instant case, there was but a temporary tract. But a different rule obtains where, as change in the title to the property, the title being restored to the insured prior to the loss sustained; for in such case his relation to the contract of insurance is the same as identical party to whom the policy was iswhen the contract was made, and he is the sued. There was therefore only a temporary suspension of the risk, continuing while the property, and a revival of the risk upon the insured remained divested of the title to the restoration to him of the title, which, being in him at the time of the loss, entitles him to recover of the appellant the amount thereof. Louisville German Fire Ins. Co. v. Schnei der, 165 Ky. 285, 176 S. W. 1154, does not conflict with the conclusion herein reached. from this. In that case the insurance comThe opinion therein differentiates the case pany was a purely local mutual association, its charter and policy providing that a recorded conveyance of the insured property should, of itself, operate to terminate the membership of the assured in the association Hence, it was held that such was the effect of the convey- CINCINNATI, N. O. & T. P. RY. CO. v. The cases cited in support of this doctrine, Judgment affirmed. viz., Power v. Ocean Ins. Co., 19 La. 28, 36 Am. Dec. 665, Hitchcock v. N. W. Ins. Co., 26 N. Y. 68, Lane v. Maine, etc., Ins. Co., 12 Me. 44, 28 Am. Dec. 150, Worthington v. Bearse, 12 Allen (Mass.) 382, 90 Am. Dec. 152, and Shearman v. Niagara Fire Ins. Co., 46 N. Y. 526, 7 Am. Rep. 380, seem to fully sustain it. We have not been able to discover that the question before us has ever been decided in this jurisdiction, but in view of the authorities, supra, and the well-known rule that forfeitures are not favored, we are of opinion that the nullity or forfeiture of the pol (Court of Appeals of Kentucky. Nov. 23, 1915.) 1. RAILROADS 398-INJURY ON TRACKSUFFICIENCY OF EVIDENCE. In an administrator's action against a railroad for death of one claimed to have been struck by portions of an engine step, which broke when striking a concrete obstruction, evidence held insufficient to support verdict for plaintiff under the doctrine that, where the eviing to theorize as to the manner in which dedence leaves the court in the position of havceased met his death, and the theories advanced are equally plausible, one involving defendant's negligence, the other its freedom from negligence, and both arising upon mere conjecture, recovery cannot be had. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. 398.] 2. EVIDENCE 258-DECLARATION AGAINST INTEREST-IDENTIFICATION OF MAKER. In an administrator's action against a railroad, its engineer and conductor, for a death alleged to have been caused by portions of a shattered engine step striking decedent, where a witness, over defendant's objection, testified that he was present at the inquest, that he saw two men whom people said were the engineer and conductor of the train that killed deceased, that one of such men testified on the inquest that the cab step of the engine was loose when he last examined it before the accident, such testimony would have been admissible against the conductor or engineer if the witness had been able to identify either as the person who had so testified upon the inquest, but it was incompetent as to the conductor and engineer, and also the railroad, where the witness was unable to identify the person who had so testified, and no other witness aided his testimony by connecting the statement testified to with either of the trainmen. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1006, 1007; Dec. Dig. 258.] Appeal from from Circuit Court, McCreary County. Action by Arthur Frogg's administrator against the Cincinnati, New Orleans & Texas Pacific Railway Company and others. Judgment for plaintiff, and defendant Railway Company appeals. Reversed, with directions. Tye, Siler & Gatliffe, of Williamsburg, and John Galvin, of Cincinnati, Ohio, for appellant. Robert Harding and John W. Rawlings, both of Danville, J. P. Hobson & Son, of Frankfort, and John M. Perkins, of Whitley City, for appellee. form, bordered by a concrete curb next to the railway tracks. And from the north end of this platform a pathway leads off in a northeasterly direction, crossing a couple of storage side tracks, to an intersection with the public highway above mentioned. By using the railroad platform and this pathway, persons desiring to pass from that part of the town west of the tracks near the depot to that portion of the town on the east side of the tracks and northeast of the depot were able to lessen the distance as compared with able to lessen the distance as compared with the route of the public highway; and it appears from the evidence in the record that the people of Pine Knot almost universally used this route via the depot platform in passing between the two mentioned portions of the town. This platform immediately in front of and near the depot was constructed of lumber, but to the north of the depot, it was made of gravel. Frogg had been working on a job of railroad grading, but on the day in question, it being a Saturday, he did not work in the afternoon. He was at his father's distillery, and drank some whisky about 2 o'clock, and then left. His father says that he was drinking, but not drunk. He returned about half past 3, and again left, and went to Pine Knot. His father lived about three-quarters of a mile north of the Pine Knot depot. The evidence for the plaintiff conduces to show that Frogg was at the home of Fred Smith, on the west side of the tracks and rather south of the Pine Knot depot, on the night in question; that he left there to return to that portion of the town on the other side of the tracks (in doing which he would ordinarily have walked north along the depot platform); and that in a period of time which was about sufficient for him to have reached the depot a freight train came into Pine Knot from the south. As this train passed the depot platform, going north, a noise or jar attracted the attention of the en HANNAH, J. About 9 o'clock on the night of April 26, 1913, Arthur Frogg, a young man about 20 years of age, was killed near the railroad depot at Pine Knot. His administrator instituted this action in the Mc-gineer. The train came to a stop, and Frogg's Creary circuit court against the Cincinnati, New Orleans & Texas Pacific Railway Company to recover damages for his death, and obtained a verdict and judgment in the sum of $5,000. The railway company appeals. Pine Knot is a village of some 500 or 600 inhabitants. The tracks of the railway company run north and south through the village. The larger portion of the town is east of the tracks, and rather northeast of the depot. A public highway crosses the tracks just south of the depot, which is on the east side of the tracks. This highway crosses the tracks from west to east, and, after passing the depot, it then turns to the north and runs parallel with the railroad tracks. Along in front of the depot, and extending from this public highway to a point probably 150 feet north of the depot, there is on the premises of the appellant a plat body was found lying on the gravel extension of the platform north of the depot. A fracture of the skull an inch above and 2 inches in front of the left ear had produced instant death. His left shoulder was bruised; and there were a number of bruises on his left side and down his back and on his left hip, and the skin had been knocked off the left shin bone in three or four places. The back of his left coat sleeve was torn, and there was a torn place in his trousers over the left hip. An iron step attached to the cab of the locomotive (used in mounting to the cab) had been torn from its fastenings and broken into several pieces, and these pieces were lying near where Frogg was found. One of these weighed 10 or 12 pounds. A hole had been torn in the concrete curb which ran along in front of the platform next to the tracks. This hole was about 50 feet south it to tear up the concrete curb. All the of where the body was found. The curb wounds were on his left side; and, had he mentioned was about 20 to 24 inches in been sitting on the curb, his left side would height and 20 to 22 inches from the track; have been nearer to the approaching train. and the step of the locomotive cab, when in If he was killed in this way, the number proper position, cleared the curb about 6 and distribution of the wounds on his body inches. and the tearing of his clothes is more satisfactorily accounted for than by the theory that a number of the pieces struck him practically all over the left side of his body; especially as some of the wounds were on the front of the body and some on the back, although all on the left side thereof. No one saw Frogg killed; but it was the theory of the plaintiff that the cab step was loose, and dropping down struck the concrete curb, breaking it into pieces, and that these flying pieces of the step struck and killed him as he was walking north along the depot platform. On the other hand, it is the contention of the railway company that a peremptory instruction should have been granted in its favor at the close of plaintiff's evidence, upon the ground that there was no evidence showing liability on its part. [1] It has been held that, to authorize a recovery in cases like this, it is not essential that there should be direct evidence from the mouths of eyewitnesses to the occurrence; that the manner in which the accident happened, as well as the negligence of the railway company, may be established by circumstances. Southern Railway v. Caplinger's Adm'r, 151 Ky. 749, 152 S. W. 947, 49 L. R. A. (N. S.) 660. In L. & N. R. R. v. Taylor's Adm'x, 158 Ky. 633, 166 S. W. 199, Taylor was struck and killed by a freight train. No one saw the occurrence; but Taylor was seen starting up the track. A train followed him. The marks made on the cross-ties by the heels of his shoes, the condition of the cinders between the rails, and the wounds on his body all showed that he was struck from behind by the train and dragged quite a distance. It was sought to be contended in that case that Taylor was probably killed in an attempt to board the moving train; but this court held that, in view of the physical facts, the jury was justified in reaching the conclusion that he was killed in the manner above stated. The evidence in the case at bar, however, does not so clearly point to the actual manner of Frogg's death. The apparently fatal weakness in the theory of the plaintiff rests in the number and distribution of the wounds on the body. The step was undoubtedly broken into several pieces, and this was doubtless caused by its striking the concrete curb as contended by plaintiff; but that all or practically all of those pieces should have continued to fly through the air for a distance of 50 feet, and all or practically all of them strike Frogg, as must have been done to have caused the number of wounds found on his body, does not seem conceivable. It seems to us that it is just as reasonable a theory (if, indeed, it be not more reasonable) to say, as defendant theorizes, that Frogg was struck while sitting on the curb, and It seems to us, therefor, that this case is one which demands the application of the doctrine that, where the evidence leaves us in the position of having to theorize as to the manner in which deceased met his death, and the theories advanced are equally plausible, one involving negligence on the part of the defendant, and the other freedom from such negligence, and both arising upon mere conjecture, a recovery cannot be had. Caldwell's Adm'r v. C. & O. Ry., 155 Ky. 609, 160 S. W. 158; Osborne's Adm'r v. C., N. O. & T. P. Ry., 158 Ky. 176, 164 S. W. 818; Bell's Adm'x v. C. & O. Ry., 161 Ky. 466, 170 S. W. 1180; Woodburn v. U. L., H. & P. Co., 164 Ky. 29, 174 S. W. 730; L. & N. v. Chambers, 165 Ky. 736, 178 S. W. 1101. [2] 2. Over the objection of the defendant railway company, a witness, Cross, was permitted to testify that he was present at the inquest held by the coroner over the body of Frogg; that he saw two men there whom people said were the engineer and conductor of the train in question; that one of the men so pointed out to him testified on that inquest that the cab step was loose when he examined it at Robbins or Glenmarrow, stations south of Pine Knot. This testimony was not corroborated in any way; in fact (though we are not now considering the evidence of defendant's witnesses), this witness was contradicted by all the other witnesses who were present at the inquest, including the magistrate who presided. The conductor and engineer of the train were joined with the railway company as defendants in the action; and if this witness had been able to identify either as the person who had so testified upon the inquest, the evidence in question would have been admissible against the person who had so testified, but against him alone. But, as the witness was unable to identify the person who had so testified, and no other witness aided his testimony by connecting the statement so testified about with either of the defendant trainmen, the evidence in question was incompetent, even as against either of those defendants, and in no event was it competent against the railway, and, being incompetent, it was of no assistance to the plaintiff upon the consideration of the defendants' motion for a peremptory instruc |