causing the Injury. (3) Loss of both feet, occurring within ninety days from the date of the accident causing the injury. (4) Loss of one hand and one foot, occurring within ninety days from the date of the accident causing the injury. (5) Loss of both eyes (meaning absolute, total, and permanent blindness, and provided the insured possessed the sight of both eyes at the date of the injury), caused by one accident and within ninety days of the accident causing the injury. (6) Immediate, continuous, and total disability for life, caused by one accident. (7) Loss of either foot or either hand, occurring within ninety days from the date of the accident causing the injury. (8) Loss of one eye (meaning absolute, total, and permanent blindness), occurring within ninety days from the date of the accident causing the injury. (9) Loss of time, per week, for a term not exceeding 104 consecutive weeks, when immediately, continuously, and wholly disabled. The payment for loss under provisions 1, 2, 3, 4, and 5, above specified, shall be the full principal sum named herein. The payments for loss under provisions 6 and 7, above specified, shall be one-half of the principal sum named herein. The payment for loss under provision 8, above specified, shall be one-fourth of the principal sum named herein. The payment for loss of time, under provision 9, above specified, shall be at the rate of twenty-five dollars per week, not to exceed his average weekly wages, payable as hereinafter provided. Neither the insured nor his beneficiary shall be entitled to indemnity under any of the provisions 1 to 8, inclusive, above specified, for any injury received while the insured is claiming or receiving indemnity under provision 9 of this policy. Should death result solely from such physical bodily injury, within the conditions of this contract, said association will pay, at its home office, as provided herein, the principal sum of five thousand dollars to wife, Issola Rorick, if living, otherwise to the legal representatives of the insured.

"Definitions and Conditions. (Subject to the following provisions hereof this policy is noncontestable, also nonforfeitable, as to any change of occupation.) • By loss of hand or hands, or a foot or feet, is meant the actual severance of the hand or hands, foot or feet, above the wrist or ankle. By total disability for life is meant immediate, continuous, total inability to perform any and every kind of labor or work, whereby the insured might obtain a livelihood; and no claim for such disability shall arise until it shall have immediately and continuously existed for a period of two years from the date of the accident causing such disability. By wholly disabled is meant immediate, continuous, total inability to perform any work, labor, business, or service, or any part thereof, from the date of the accident causing the injury. If any injury resulting in rupture, or hernia, shall cause disability or death, entitling the insured or his beneficiaries to claim indemnity of this policy, or if any injury entitling insured or his beneficiaries to claim indemnity under this policy be caused or contributed to, by contract [contact] with poisonous substances, or by handling or using dynamite or other explosives, or by being engaged in gymnastic or athletic sports, or by exposure to unnecessary danger or perilous venture (except in an effort to save human life), whether the insured did or did not anticipate injury or death to result from such exposure or perilous venture, or by sunstroke or freezing, or by gas or poison in any form or manner, or by anything leaving no external or visible mark of contusion or wound upon the body sufficient to cause death (drowning only excepted), and it shall appear by an autopsy that such injury contributed to the death of the insured, then, in each and every such case, the limit of the association's liability shall be one-fourth of the sum otherwise payable, anything to the contrary herein notwithstanding. If any injury causing disability or death, entitling the insured to claim benefits under the provisions of this policy, be caused or contributed to by quarreling, or by fighting, or by the intentional act of any person other than the insured, or by the act of any person who at the time was insane, or by the sting or bite of a spider, bug, or insect, or by the use of intoxicants or narcotics, or by war or riot, or by any surgical operation of any medical, dental, or mechanical treatment, except by amputation rendered necessary by an accidental injury and made within ninety days from the date of the event causing the injury, then, in each and every such case, the limit of the association's liability shall be one hundred dollars for fatal injury, or the gross sum of

ten dollars for nonfatal injury, anything to the contrary herein notwithstanding.

"Increase of Hazard. If the injured be fatally or nonfatally injured, within the intent and meaning of this policy, while engaged, temporarily or otherwise, in any occupation or work or risk classified by this association as more hazardous than that under which this policy is issued, or while doing any part of the work of any one so classified, or while exposed to any risk classified by this association as more hazardous than that under which this policy is issued, then, in such case, the association's liability shall not exceed such an amount as the premiums paid will purchase for such more hazardous occupation or work or risk, according to the classification of risks and premium rates and limits of this association. The classification of risks of this association is hereby made a part of this contract. If the insured be injured fatally or nonfatally while engaged, temporarily or otherwise, in any occupation or work or risk not classified by this association, this association's liability shall be rated upon the basis of the most hazardous occupation or work or risk mentioned in the classification of risks of this association: provided, however, if the insured shall have made an extra payment for extra weekly indemnity, such extra payment shall be excluded in ascertaining the amount due as benefits under provisions 1 to 8, inclusive, of this policy, if he be killed or sustain any of the losses enumerated in said provisions in a more hazardous occupation or work or risk than that named in this policy. The death of the insured shall immediately terminate all liability under this policy under provision 9 hereof; and in no case shall the insured be entitled to recover for more than a total of 104 weeks hereunder. Upon the payment of the sum insured under the provisions 1, 2, 3, 4, 5, 6, 7, and 8 hereof, all further liability of the association shall immediately cease, and this policy be thereby terminated."

It is thus seen that throughout the policy the insurance contracted for was against physical bodily injury "resulting in disability or death." Varying provisions are made for compensation in the event of the loss of certain members of the body within 90 days from the date of the accident causing the injury, and other and different provisions in the case of total, immediate, and continuous disability. Naturally, the first of those various injuries covered by the insurance (being the most serious) is "loss of life, occurring within ninety days. from the date of the accident causing the fatal injury." There is here no provision or suggestion that "loss of life, occurring within ninety days from the date of the accident causing the fatal injury," is not insured against, unless the injury also causes "total, immediate, and continuous disability." The necessary effect of reading into the policy by construction such a limitation would be to make it mean that the insurer assumed no risk on account of the death of the insured, unless the fatal injury also "immediately, continuously, and totally" disabled him; in other words, that under the policy in suit there must be both death "and" disability before any liability for death can arise. Yet the contract in express terms declares that the insurance shall extend to physical injury resulting in either disability "or" death. Moreover, it would be contrary to a thoroughly and well settled rule to read by judicial construction into a policy prepared by the insurer a limitation in its favor and against the insured, especially when to do so would exonerate it from a loss for which it in express terms contracted to pay.

We are of the opinion that the notice alleged to have been given by the plaintiff in error was in time, and accordingly the judgment is reversed, and the cause remanded to the court below, with directions

to overrule the demurrer to the second amended complaint, with leave to the defendant thereto to answer.

GILBERT, Circuit Judge (dissenting). Did the accident occur on the date when the insured received the injury to his head, or did it occur later, when he became disabled as a result of that injury? I submit that in all cases of accident insurance the accident insured against is the occurrence of the bodily injury "through external, violent, and accidental means," which becomes the cause of the death or disability of the insured, and that the accident in this case occurred when the insured received the blow whch in its subsequent development produced disability, insanity, and death. After such an injury is inflicted, it cannot be said, with any due regard to the meaning of the language employed in the policy, that the development of the injury or any of its subsequent changing phases may be regarded as the accident which is insured against. The date when the insured in this case became disabled by reason of the suffering in his head was not the date of his accident. That disability so developed on that date. was not the result of any "external, violent, or accidental means" occurring on that date, but was the natural result and progress of an injury which had occurred six days prior thereto. Suppose the injury, at first apparently trivial, had gradually and during a period of six days developed into disability; could it be said that such development in any of its stages constituted an accident subsequent to the happening of the injury which was its cause? It may well be doubted whether the policy of insurance in this cause renders the defendant in error liable for an accident of the nature of that which occurred to the insured. In the policy it is stipulated as follows:

"The insurance under this policy shall extend only to physical bodily injury resulting in disability or death, as hereinafter expressed, and which shall be effected, while this contract is in force, solely by reason of and through external, violent, and accidental means, within the terms and conditions of this contract, and which shall, independently of all other causes, immediately, wholly, totally, and continuously, from the date of the accident causing the injury, disable the insured, and prevent him from doing or performing any work, labor, business, or service, or any part thereof, within the conditions of this contract."

The parties to the contract had the right to stipulate that the insurance company would be liable for no accident which did not produce immediate disability. They might agree that the company would assume no responsibility for an accident which was deemed trivial at the time when it occurred, but which at a subsequent date might develop into disability. They have used such language in this contract, and have declared as clearly as words could express it that the company assumes no risk whatever for death or disability resulting from an accident which was not productive of immediate and continuous disability or death; and none of the other provisions of the policy, in my judgment, is inconsistent with or operates to modify this plain provision.

But, whatever may have been the liability assumed by the defendant in error, I think it is clear that in this case the notice demanded by the policy was not given. The required notice was not a notice of

the cause of the disability or death, but a notice of the accident itself, and of its cause. As was stated by the trial court, the exacted notice was not of the class of those which are held void as being unreasonable. The notice not having been given within the stipulated time, I think the defendant in error is absolved from liability.

UNITED STATES v. GENTRY.

(Circuit Court of Appeals, Eighth Circuit. November 10, 1902.)

No. 1,757.

1. TRESPASS-CUTTING TIMBER-JUSTIFICATION NOT ESSENTIAL TO PROOF THAT TRESPASS NOT WILLFUL.

The test which determines whether one was a willful or an innocent trespasser is not his violation of or compliance with the law, but his honest belief and actual intention at the time he committed the trespass, and neither a justification of his acts nor any other complete defense to them is essential to establish the fact that he was not a willful trespasser.

2. SAME EVIDENCE OF INTENTION AND GOOD FAITH.

Where the good faith or intention of a party in an affair is in issue, his acts and sayings in relation to it at or about the time of the transaction generally constitute the best evidence, and are always competent and material.

8. SAME-CUTTING TIMBER-CONSTRUCTION OF SECRETARY'S RULE AS TO SALES UNDER ACT JUNE 3, 1878.

The rule of the secretary of the interior that one who takes timber from the mineral land of the United States under the act of June 3, 1878 (20 Stat. 88 [U. S. Comp. St. 1901, p. 1528]), shall not sell or dispose of it without taking a written agreement from the purchaser that it shall not be used except for building, agricultural, mining, or domestic purposes within the state or territory, requires the vendor to take the agreement before or at the same time when he sells or disposes of the timber, and obtaining the written contract three months after the sale and delivery is not a substantial compliance with the rule.

4. SAME-FULL COMPLIANCE WITH THE ACT OF 1878 REQUISITE TO JUSTIFICA

TION THEREUNDER.

The rule is that one who takes timber from the public domain is a willful trespasser, and a full and fair compliance with the requirements of the act of June 3, 1878 [U. S. Comp. St. 1901, p. 1528], and with the rules prescribed by the secretary of the interior thereunder, is essential to justify the taking of timber from the public domain under that act. 5. PLEADING AMENDED SUPERSEDES ORIGINAL COMPLAINT.

An amended complaint, which is complete in itself, and which does not refer to or adopt the original complaint as a part of it, entirely supersedes its predecessor, and becomes the sole statement of the plaintiff's cause of action.

6. ERROR NOT DISREGARDED UNLESS ABSENCE OF PREJUDICE IS CLEAR BEYOND DOUBT.

The presumption is that error produces prejudice. It is only when it appears so clear as to be beyond doubt that the error challenged did not prejudice, and could not have prejudiced, the complaining party, that the rule that error without prejudice is no ground for reversal is applicable.

Caldwell, C. J., dissenting. (Syllabus by the Court.)

In Error to the District Court of the United States for the District of Colorado.

This is the second appearance of this case in this court. The judgment on the first trial was reversed, because in an action for the recovery of damages for the conversion of timber a verdict and judgment for the recovery of lumber and logs were rendered without any pleading of such a cause of action, or any prayer for such relief. Before the second trial was had, the complaint in conversion was superseded by an amended complaint, which set forth a cause of action in replevin, and prayed for the recovery of 539,505 feet of lumber and 300 saw logs, or for the sum of $5,000, the value thereof. The defendant, Gentry, answered this new cause of action that the lumber and logs were his; that he had lawfully taken them from the mineral lands of the United States, in compliance with the terms of the act of congress of June 3, 1878 (20 Stat. 88 [U. S. Comp. St. 1901, p. 1528]); that he had taken them in good faith in the honest belief that he had a lawful right to do so; that the lumber and logs had been taken from him by the United States marshal under color of the authority of the circuit court, and that their proceeds were in its registry. He prayed that he might be adjudged to be the owner of the lumber and logs, and that their proceeds in the registry of the court might be paid over to him. The plaintiff put at issue the averments of the amended answer, and the case proceeded to its second trial. At this trial it conclusively appeared that the logs and lumber of which the defendant had possession when the action was commenced had all been taken from him by the United States marshal under a writ of replevin issued in this action without authority and in violation of the statutes and practice of Colorado (Gentry v. U. S., 101 Fed. 51, 53, 41 C. C. A. 185, 187); that, pursuant to an order of the court, the marshal had sold this property, and that the net proceeds of the sale, which, with interest, amounted to more than $3,600, had been deposited in the registry of the court to the credit of the cause, to abide its final determination. Notwithstanding these pleadings and facts, and the plain issue relative to the disposition of this sum of money, the court instructed the jury at the close of the trial that this was an action by the United States to recover damages for the conversion of the lumber and logs; that, if the defendant had complied with the act of June 3, 1878, they ought to find a verdict in his favor; that, if he had failed in compliance, but was an unintentional trespasser, they should return a verdict against him for the value of the timber in the trees, and that, if they found that he was a willful trespasser, they should render a verdict against him for the full value of the manufactured lumber, as it was at the commencement of the action. Under these instructions the jury returned a simple verdict for the defendant, without determining the ownership of the logs and lumber seized, or of their proceeds in the registry of the court, and a judgment that the defendant go hence without day has been rendered. The writ of error which the United States has sued out challenges this judgment.

Glenn E. Husted and Henry C. Lewis (Marsden C. Burch, on the brief), for plaintiff in error.

Charles D. Hayt (Clyde C. Dawson, on the brief), for defendant in

error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The chief complaint of the government concerning the trial of this case is that the defendant was permitted to introduce certain evidence. tending to show an alleged compliance on his part with the act of June 3, 1878 [U. S. Comp. St. 1901, p. 1528], and that the jury was instructed that, if they believed from this evidence that the defendant