R. D. Ware, for the plaintiff.

H. Dunham, for the defendant.

355 KNOWLTON, C. J. The plaintiff contended that a part of the property included in the policy was not covered by it at the time of the fire, because it had been removed from the building in which it was insured to another building near by, which was burned in the same conflagration.

Upon the policy a rider had been attached, as follows: "Permission is hereby given the assured to remove the within insured property to frame dwelling building situate east side South Main Street, between Union and Maple Sts. in Randolph, Mass. This policy to attach and cover the same in both locations during removal in proportion as the value in each location shall bear to the value in both and after removal shall attach and cover in new location only." There was evidence tending to show that an important part of the property had been removed and stored temporarily in another building, with a view to the subsequent removal of it to Randolph. As to this the judge instructed the jury as follows: "Now as to any articles which were moved from the Irving Cottage, if any were, and temporarily placed in another building that being a part of the transmission of the property from the Irving Cottage to Randolph within any reasonable grounds, the policy of insurance might cover such property in its transmission from the one place to another.

It must appear that if any portion of the property 356 was placed temporarily in another building while it was in process of being moved, the placing of that property there was for a very short period of time only; that it was temporarily there, and that it was not to remain there and did not remain there under the protection of that building." This was erroneous. In Goodhue v. Hartford Ins. Co., 184 Mass. 41, 67 N. E. 645, it was decided, under a contract in substantially the same terms as the one now before us, that goods which were burned in railroad cars while being removed were not covered by the policy. Other cases involving the same general principle are Bradbury v. Fire Ins. Assn., 80 Me. 396, 6 Am. St. Rep. 219, 15 Atl. 34; English v. Franklin Ins. Co., 55 Mich. 273, 54 Am. Rep. 377, 21 N. W. 340; Lycoming Ins. Co. v. Updegraff, 40 Pa. 311; Hartford Ins. Co. v. Farrish, 73 Ill. 166; Mawhinney v. Southern Ins. Co., 98 Cal. 184, 32 Pac. 945, 20 L. R. A. 87.

There was evidence tending to show a fraudulent representation by the defendant to the plaintiff that this property had

not been removed from the place where it was when the policy was issued, and that most of the property was in that place at the time of the fire, a small portion only having been removed to Randolph. The instruction just quoted was important as bearing upon the materiality of the fraudulent representation, if there was a fraudulent representation.

At the request of the defendant the judge also instructed the jury that “payment by the plaintiff to the defendant in this action is a waiver of all breaches of the insurance policy on the part of the defendant and every defense which might have been made to the policy on which said payment was made except for such waiver." This leaves out of consideration the fact, upon the evidence, the payment might have been procured by fraudulent representations of the defendant in regard to material matters. If it was so procured the plaintiff, on discovery, might avoid the effect of it, and it would not constitute a waiver. In Berkshire Ins. Co. v. Sturgis, 13 Gray, 177, relied on by the defendant, there is nothing that precludes one from avoiding a settlement procured by fraud. This instruction was erroneous.

As bearing upon one branch of the case the assignment of the policy to the defendant by her husband, after the payment to 357 her by the plaintiff, with the assent of the plaintiff's agents indorsed upon the policy, was rightly admitted.

The other questions of evidence presented by the bill of exceptions are not likely to arise in the same form at another trial, and we do not think it necessary to consider them. Exceptions sustained.

A Condition that a Policy Insuring Against Loss by Fire is to become void if any change takes place in the location of the property does not, on its breach, render the policy absolutely void, so that no recovery can be had thereon if a loss subsequently occurs at another place to which the insurer had stipulated that removal might be made, though, when so stipulating, he had no knowledge of the previous removal: Ohio Farmers' Ins. Co. v. Burget, 65 Ohio St. 119, 87 Am. St. Rep. 596, and see the cases cited in the cross-reference note thereto.

SULLIVAN v. OLD COLONY STREET RAILWAY COM

PANY.

[197 Mass. 512, 83 N. E. 1091.]

DAMAGES, Evidence of in Actions of Tort.-The connection between a tortious act, the person sought to be charged with the consequences of the injury, and the injury sustained must be established by a fair preponderance of the evidence before the plaintiff can be permitted to recover. Such casual connection cannot be left to conjecture, surmise or speculation, but must rest on a firm foundation of proof. (p. 380.)

DAMAGES-Mental Suffering, When too Remote.-A woman cannot be permitted to recover for sorrow and anguish endured as the result of the death of her child claimed to be due to injury received by her seven months before its conception and fourteen months before its birth. (pp. 381, 382.)

DAMAGES, Mental Suffering as an Element of.-The mental suffering for which damages can be recovered is limited to that which results to the person injured as the necessary or natural consequence of the physical injury, but sentiments of grief, sorrow and mourning which are aroused by extraneous causes, thoughts and reflections are excluded. (p. 381.)

Action by a married woman to recover for personal injuries sustained on April 17, 1905, when a passenger on defendant's car. The defendant conceded its liability, and the evidence at the trial related only to the question of dam

The plaintiff's physician testified that, on a physical examination on the day following the accident, no result was discovered except a single bruise over her right lower rib, but since the accident and up to the time of the trial, she had been suffering from a functional disturbance of the nervous system, known as hysteria, and that this was principally the result of the excitement and fright of the accident. About November, 1905, the plaintiff became pregnant, and on the 4th of July following, gave birth to a child, which survived only forty-eight hours. The physician further testified that it was commonly supposed that the condition of the mother while carrying a child affects its health and likelihood of life, but that he could only surmise whether the mother's health had any effect on the child; that it was perfectly possible for an apparently healthy mother to give birth to a diseased, deformed or dead child, and for a sickly mother to give birth to a well child.

The defendant asked the judge to instruct the jury to take great care not to allow the plaintiff any damages by reason of the death of the child; that such injury, if there were any evidence that it was attributable to the accident, was too

remote to be a ground for damages, and the judge so instructed. He refused, however, to instruct that there was no sufficient evidence that the death of the child was in any way attributable to the accident, and he told the jury, "There is a difference in the claim made by the plaintiff and that of the defendant as to whether the birth of this child and its subsequent death was in any way or manner attributable to this injury which Mrs. Sullivan sustained, and I instruct you that on account of the death of this child the plaintiff is not entitled to recover, that that is not a proper element of damage to be considered by you in the trial of this case and in estimating this plaintiff's damages, and you will bear that carefully in mind. . . . for the death of this child whether its death was due to this accident, as the result of this accident or not, that is a matter that you are not to consider but should leave entirely out of consideration in your estimate of damages. On the other hand, gentlemen, it is a question in dispute between the parties as to whether this child's birth and death was in any way affected by the injuries which Mrs. Sullivan received on April 7, 1905. If you should find as a matter of fact that the accident had nothing to do with the birth of the child at the time it was born and its subsequent death, why then any question on what I am about to say about it is entirely immaterial. If, on the other hand, you should find that this child. . . . the child's birth, the date of its birth, the day of its birth and its subsequent death was affected by reason of the injuries which Mrs. Sullivan received while she was a passenger in the car of the defendant as she claims, then that evidence would be important for your consideration in one particular only-not that she would be entitled to recover for the death of the child but if you found that the child's death was brought about on account of the injuries which the mother received, and you should further find that on account of the death of the child that the mother suffered mentally as the result of the death of the child, then you would be entitled-it would be your duty to take into account that mental suffering, if there was any, in connection with the damages which she has sustained. If she does not satisfy you that this child's death was attributable to the accident, or if you should find that she did not suffer mentally as the result of this child's death, then you would leave out of consideration that question in passing upon the question of damages."

Verdict for the plaintiff, and the defendant alleged exceptions.

E. Greenhood, for the plaintiff.

Asa P. French and J. S. Allen, Jr., for the defendant.

515 RUGG, J. The connection between the tortious act of a person sought to be charged for the consequences of an injury, as the cause, and the injury sustained, as the effect, must be established by a fair preponderance of the evidence before a plaintiff can be permitted to recover. Such causal connection cannot be left to conjecture, surmise or speculation, but must rest upon a firm foundation of proof: Williams v. Citizens' Electric St. Ry., 184 Mass. 437, 68 N. E. 840; McGarrahan v. New York etc. R. R., 171 Mass. 211, 50 N. E. 610. The evidence tending to connect the premature birth of the child, on July 5, 1906, and its subsequent death within forty-eight hours, with the injury received by the plaintiff on April 7, 1905, is extremely slender. If there were nothing beyond the testimony of the plaintiff and her attending physician, it would be insufficient, for the latter plainly said that he could only "surmise" as to the cause of the condition of the child. There was, however, testimony showing an extreme nervous condition on the part of the plaintiff as the result of the injury, and a physician called by the defendant testified that premature birth might result from a nervous condition of the mother, if she were profoundly affected by it. Upon the authority of Sullivan v. Boston Elevated Ry., 185 Mass. 602, 71 N. E. 90, this was enough. It has been argued, nevertheless, that the case rests on the ground stated in Daniels v. New York etc. R. R., 183 Mass. 393, 67 N. E. 424, 62 L. R. A. 751, namely, that the wrongful act of the defendant was not "the active efficient cause of the subsequent event," but "only the producer of the conditions which opened the door to another cause, which directly and actively produced the result," and that the death of the after-conceived child was a remote consequence of the injury to the mother, but not an effect actively produced by it, and that the plaintiff's voluntary act intervened as the real cause: See Snow v. New York etc. R. R., 185 Mass. 321, 70 N. E. 205. This principle has no application to a case like the present. The perpetuation of the human race cannot be termed a voluntary act, but it rests upon instincts and desires, which are fundamentally imperative.

Although careful instructions were given to exclude the death of the child as an element of damage, the jury were permitted to take into account the mental suffering of the