"We declare freedom of speech to be the | dom of speech, and that a declaration of war bulwark of human liberty, and we decry all at- does not repeal the Constitution. A demand tempts to muzzle the public press or individuals, is made that interference by military and upon any pretext whatsoever. A declaration of war does not repeal the Constitution of the United States, and the unwarranted interference of military and other authorities with the rights of individuals must cease. "The contributory causes of the present war are various; but above the horrible slaughter loom the ugly incitings of an economic system based upon exploitation. It is largely a convulsive effort on the part of the adroit rulers of warring nations for control of the constantly diminishing market. Rival groups of monopolists are playing a deadly game for commercial supremacy. "At the close of this war sound international standards must be established on the basis of a true democracy. Our economic organizations must be completely purged of privilege. Private monopolies must be supplanted by public administration of credit, finance and natural resources. The rule of jobbers and speculators must be overthrown if we are to produce a real democracy; otherwise this war will have been fought in vain. "Only in this spirit do we justify war, and only thus can lasting peace be established." other authorities with individuals should cease. We do not know to what this may refer, though it cannot, standing alone, be held to constitute an intended or other interference with the government's military operations. Here follows some reference to the contrib utory causes of the war, with the statement: That "above the horrible slaughter loom the ugly incitings of an economic system based upon exploitation. It is largely a convulsive effort on the part of adroit rulers of warring nations for control of a constantly diminishing market. Rival groups of monopolists are playing a deadly game for commercial supremacy." And in closing the resolutions declare that at the end of the war sound international standards must be established on the basis of true democracy, completely purging economic organizations of class privileges, and that the rule of jobbers and speculators must be overthrown if we are to have a real democracy. Just what is meant by the effort of adroit rulers to control a diminishing market is not clear, but the statement is not a violation of the statute. [5] Nor can it be held that the resolutions taken as a whole support the charge. The court cannot inject by inference matter of substance between the lines of the resolu The question is whether these resolutions may be said to encroach upon or violate the prohibitions of the statute. No reference is made to enlistments in the American army, nor advice or suggestion made that assistance be not extended to the government. The resolutions are prefaced with expressions of loyalty, and declare the purpose of the organization to stand by the government in the tions, and predicate a conviction thereon, for present crisis. The declaration of the loyal- the fact, and not the prosecutor's inferences, ty and purpose of the association may be must be the basis of a conviction under the sham, as urged by the state, but we have no statute. The resolutions taken as a whole, right to so assume. In the absence of someappear to be nothing more serious than a thing in the resolutions showing to the con- rhetorical, and somewhat flamboyant, plattrary, we are bound to treat the declaration form upon which a certain class of citizens so having been made in good faith. The dec- are solicited to join an organization whose laration is followed by expressions in op- avowed purpose is the amelioration of the alposition to the waging of war for the pur-leged evils of present economic conditions, pose of indemnity or annexation of territory, and the United States government is urged to disclaim any such purpose. This is not obnoxious to the statute. There is a demand for the abolition of secret diplomacy, and condemnation of secret agreements by kings, presidents, and other rulers, to be made, broken, or kept without the knowledge or consent of the people. That in no way offends the statute. Then follow statements in reference to the profits made by certain manufacturers of war materials, and a demand that those thus profiting by the war contribute to the expense thereof in proportion to such profits as compared with poorly paid employés. Patriotism, the resolutions declare, "demands services from all according to their capacity." That is all true, but the assertion of the facts as to profits by deal ers in war material, and the demand that they contribute to the expense of the war in proportion thereto, in no proper view can be said to discourage enlistment, or the purchase of government bonds by employés. The reslutions proceed with declarations of free and to bring about a more equal distribution of the wealth of the world among all classes of mankind. The pursuit of this object does not violate the statute in question. United States v. Pierce (D. C.) 245 Fed. 878, is not in point. It is perhaps not out of place to say that the resolutions have not yet attracted the attention of the federal authorities. On the whole our conclusion is that the demurrers to both indictments should have been sustained. We answer the certified questions accordingly, and remand the causes to the court below for further proceedings. Reversed. JORDAN v. ALLEN et al. (No. 20080.) (Supreme Court of Nebraska. June 26, 1918.) (Syllabus by the Court.) 1061(4)-DIRECTION 1. APPEAL AND ERROR 2. REPLEVIN 117-LOSING PARTY-COSTS. not in point. There is an element here that "A defendant in replevin who unsuccessfully was lacking in the Wattles Case. Hetzel seeks to establish a right of possession in him- recognized the mortgage in evidence as being self is liable for costs, although no demand was pleaded or proved." Tilden v. Stilson, 49 Neb. 382, 68 N. W. 478. Appeal from District Court, Sheridan County; Westover, Judge. Replevin by John C. Jordan against John Allen, in which Charles A. Hetzel intervened and filed a cross-petition. Judgment for plaintiff upon a directed verdict, and the intervener as defendant appeals. Affirmed. E. D. & F. A. Crites, of Chadron, for appellant. C Patterson, of Rushville, and Lloyd Jordan, of Gordon, for appellee. DEAN, J. This is a replevin action commenced by John C. Jordan in the district court for Sheridan county to obtain possession of 800 bushels of wheat that was raised by John Allen on land owned by Charles A. Hetzel, defendant. Hetzel, who intervened, filed an answer and cross-petition asserting ownership. At the close of the testimony the court directed a verdict for plaintiff for 750 bushels of the wheat. The grain having been sold, defendant recovered $42.80; that being the surplus that remained after plaintiff's claim and expenses were paid. Each party was required to pay his own costs. The intervener as defendant has appealed. By the terms of an oral lease between Hetzel and Allen made in the fall of 1914, the crops were to be divided equally between them. Allen gave a mortgage to "The Fair," a general merchandising concern at Gordon, on his half interest in 100 acres of growing wheat and some corn that was in shock on the farm, and also some live stock. Plaintiff purchased the note and mortgage in suit from "The Fair." The instruments are both dated September 26, 1914, and the mortgage was recorded February 4, 1915. They were executed while Allen was living on Hetzel's land. a valid instrument both as to the corn and the wheat before plaintiff bought it. While defendant earnestly insisted that he had no talk with the assignee of the mortgage, he admitted that he sold the corn that is described in the mortgage, and upon demand by W. W. Mills, manager of "The Fair," defendant paid to Mr. Mills half of the money that he received for the corn. This payment was made on November 17, 1914, the day after Allen who was then insolvent left the country and the payment was indorsed on the note. The day following Allen's disappearance, Hetzel and Mills went together from Gordon in a car a distance of eight miles to the farm to look after the stock and the property that was abandoned by Allen. On the following day, they made another trip for the same purpose. Mills testified that the mortgage in question was talked about between Hetzel and him self on both trips, and that later there was an agreement entered into that in effect provided that the winter wheat crop should be harvested by defendant and that the mortgagee should receive net a percentage of the grain that the evidence shows approximates the amount of wheat that was recovered by plaintiff. As consideration for Hetzel cutting the wheat, Mills agreed to take a less quantity of the grain than he was entitled to on the basis of an equal division. This was the second admission of the validity of the mortgage by defendant, but he denies all of this, and testified that he knew nothing about the mortgage when he paid Mills for one-half of the corn; but his admission of payment corroborates Mills' testimony. As a reason for dividing the money with Mills, Hetzel testified: "I done that so as to be good friends." It is unreasonable to believe, under the circumstances, that defendant was in ignorance of the lien not only on the corn, but on the wheat as well, and that he treated the mortgage as a valid instrument throughout. Every interest of Mills' principal would be best subserved by telling Hetzel about the mortgage and all of the property that it covered. It was the reasonable thing for Mills to do. Hetzel's claim to the wheat in suit was based in part on an assignment from Allen to him, dated November 14, 1914, and acknowledged July 26, 1916. It was offered in evidence, but excluded on the ground that the question at issue "relates to the ownership and possession" at the time of the commencement of the suit, namely, November 26, 1915. [1, 2] From all of the facts considered toThe discrepancy between the dates that ap-gether we conclude that defendant must be pears on the assignment is not explained. mistaken about the time when he first learned Hetzel harvested the wheat in 1915, and he about the Allen mortgage, though he admits maintains that Allen, having abandoned that Mills showed it to him in February, 1915. the premises, forfeited his claim to the crop, Defendant having recognized the right of and that the mortgage was invalid on that plaintiff's assignor, the original mortgagee, ground as well as upon other grounds. De to half of the corn and by cutting the wheat fendant also contends that the chattel mort- for a consideration, he cannot now be heard gage in evidence is void for uncertainty of to challenge the validity of the mortgage. description. He resisted plaintiff's claim on It seems to us that Hetzel had ample notice of both grounds. To support his argument respecting uncertainty of description, defendant cites Wattles v. Cobb, 60 Neb. 403, 83 N. W. 195, 83 Am. St. Rep. 537. But that case is plaintiff's lien and that he sufficiently recognized it so as to be charged with liability. The district court was justified in the direction that it gave to the jury. Error cannot be predicated upon a direc-| York. Judgment for plaintiff upon a directtion to return the only verdict that the recorded verdict, and defendant appeals. Reversed will sustain. Defendant argues that, in any and remanded. event, all of the costs should have been taxed to plaintiff because the action was begun before demand was made for the property. The rule is that: "A defendant in replevin who unsuccessfully seeks to establish a right of possession in himself is liable for costs, although no demand was pleaded or proved." Tilden v. Stilson, 49 Neb. 382. 68 N. W. 478. When evidence is adduced which is contrary to such presumption, or the presumption is met by conflicting presumptions, it disappears, although the fact upon which it rests may still remain proper to be considered in arriving at a conclusion. 3. INSURANCE 646(7) ACCIDENT INSURANCE-PLEADING-BURDEN OF PROOF. The petition averred death from "accidental carbolic acid or toxic poisoning." This the answer denied, and averred "suicide by the intentional drinking of a deadly poison, namely, by the drinking of carbolic acid." The reply contained a denial and admission of death from "drinking a deadly poison, to wit, carbolic acid." Held, that the burden was upon plaintiff to produce evidence showing that the death was accidental and not suicidal. 4. EVIDENCE 596(1) - BURDEN OF PROOF SUFFICIENCY. The burden of proving a cause of action or defense is not sustained by evidence from which the jury can arrive at its conclusion only by mere guess or conjecture. (Additional Syllabus by Editorial Staff.) 5. INSURANCE 449-ACCIDENT INSURANCE -"ACCIDENTAL." While, strictly speaking, a means may be accidental only when disassociated from any human agency, such interpretation is not recognized in the law of accidental insurance, but any event occurring without the expectation of the person affected must be considered "accidental," though it would not have happened but for his voluntary act. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series Accidental; Accidental Means.] Morsman, Maxwell & Crossman, of Omaha, for appellant. Sullivan, Rait & Pratt, of Omaha, for appellee. CORNISH, J. Plaintiff's petition in her action upon a policy, insuring against accident, for the death of her husband caused by accidental means, contained an allegation that "Walter B. Grosvenor did lose his life by accidental carbolic acid or toxic poisoning." The answer contained a general denial, and allegation that Grosvenor "took his own life and committed suicide by the intentional drinking of a deadly poison, namely, by the drinking of carbolic acid." The reply contained a denial and admission that "Grosvenor died by means of drinking a deadly poison, to wit, carbolic acid." When the cause came on for trial, the plaintiff, and afterwards the defendant, declined to offer evidence, whereupon the court, apparently upon the theory that, death from a deadly poison being admitted, the burden would be upon the defendant to introduce enough evidence to rebut a presumption in plaintiff's favor that the death was accidental, rather than suicidal, directed a verdict in favor of the plaintiff. The defendant, believing that the court erred in its holding, in that the pleadings failed to show death produced by bodily injury and caused by accidental means; failed to show that it was not suicidal nor caused exclusively by drinking carbolic acid; the burden being upon plaintiff to show these facts, appeals. The party who would be defeated, if no evidence were given on either side, must first produce his evidence. Rev. St. 1913, § 7846. Assuming that the burden is upon the plaintiff to prove death by accidental means, and that the mere fact of death raises a presumption or inference that the death was accidental, was the trial court right in its conclusion based upon the facts shown by the pleadings? Our opinion is to the contrary. [1, 2] Because men love life and fear death, they instinctively avoid obvious dan ger. This fact, drawn from experience, is the basis of a presumption, relied upon by plaintiff that when the cause or manner of death is unknown we infer that it was not suicidal. The inference is not based upon a law of nature which is invariable. Men do frequently commit suicide. It is one of a multitude of legitimate inferences, in which we infer the unknown, from the known, hav Appeal from District Court, Douglas Coun- ing greater or less degrees of probability, ty; Troupe, Judge. Action by Gertrude M. Grosvenor against the Fidelity & Casualty Company of New which we use in reasoning to arrive at the ultimate fact. Being a probability resting upon human experience, in its nature, it is controlling only in the absence of evidence [explanation, given in the case cited, of the of the actual. first two paragraphs of the syllabus in WalWhen, knowing only that one has died | den v. Bankers' Life Ass'n, 89 Neb. 546, 131 from drinking carbolic acid, you say you are N. W. 962, is important. The rule as stated in doubt as to cause, and then, bringing in-applies only to an appellate court's review of to service the presumption against suicidal a jury's finding. In Walden v. Bankers' Life intent, you finally conclude that the death Ass'n, the burden was upon the insurance was accidental, are you not guilty of that company to show suicide. In the instant error known in logic as petitio principii? case, the burden is upon plaintiff to show acHad you not, in reaching your first conclu- cidental death. Here, as there, it will not do sion, given the theory of accident the benefit to say, as a proposition of law for the guidof the truth upon which the presumption is ance of the jury, that accident must be "so founded? Had you assumed as a fact that clearly and unmistakably" shown or indicatthe deceased contemplated suicide or was in- ed as to exclude all reasonable probability to different to life, you might not have enter- the contrary. It is a question of clear pretained the doubt. Let us suppose experience ponderance of the evidence, going to establish has shown that of all the persons who have the essential fact, so that the jury will not be died from drinking carbolic acid three out left to mere guass or conjecture in arriving of four were cases of suicide; then, would at its conclusion. 9 Ency. of Ev. p. 885; 2 it not be palpably absurd to infer in the Chamberlayne, Modern Law of Evidence, § given case that the death was not intention- 1053; Sovereign Camp, W. O. W., v. Hruby, al? The rule invoked arises when we are 70 Neb. 5, 12, 96 N. W. 998; Hardinger v. ignorant of the intent and loses its force Modern Brotherhood of America, 72 Neb. as a presumption in presence of actual facts 869, 101 N. W. 983, 103 N. W. 74; Merrett v. bearing upon intent. The presumption then Preferred Masonic Mutual Accident Ass'n, 98 comes in conflict with other presumptions or Mich. 338, 57 N. W. 169; Connerton v. Delfacts which may overcome it. There is the aware & Hudson Canal Co., 169 Pa. 339, 32 almost conclusive presumption that when one Atl. 416. drinks he drinks voluntarily; the presumption [5] The insurance was against death by that when one drinks he knows what he is "accidental means" It is contended by the drinking, especially so if he is drinking carbol defendant insurance company that, inasmuch ic acid; the presumption that when one drinks as death was caused by voluntary act, drinkcarbolic acid he knows the poisonous charac-ing carbolic acid, the means cannot be said ter of the liquid; and the presumption that to have been accidental. As said by Cooone intends the natural consequences of his ley in Briefs on Law of Insurance, vol. 4, p. own act. These presumptions bear upon the 3156: question of intent, and the force of the original presumption must be lessened by the force given to them. While it may well be argued that we are still uncertain as to the actual intent, the presumption against intentional death can no longer prevail as prima facie proof. [3, 4] The burden was and remained upon plaintiff to prove his case. Clark v. Bankers' Accident Ins. Co., 96 Neb. 381, 147 N. W. 1118. Without evidence being produced by the plaintiff to show that the death was not intentional, the jury would be left to mere conjecture for determining the actual facts. It will not do to say that as long as there is room for doubt as to the intent the defendant must offer evidence. Rather the contrary. The burden is upon the plaintiff to show that the death was accidental; or, in other words, that it was not suicidal. This he must do by evidence of the actual facts or a situation from which accident is the reasonable inference, not a reasonable inference or possible one. The question decided in Rawitzer v. Mutual Benefit Health & Accident Ass'n, 101 Neb. 219, 162 N. W. 637, is really decisive in this case. Different minds may reasonably draw different conclusions. It is held to be an issue of fact for the jury to determine. The "Strictly speaking, a means is accidental perhaps only when disassociated from any human agency, but this narrow interpretation is not recognized in the law of accident insurance." This view seems to have been heretofore recognized by this court. "Any event which takes place without the foresight or expectation of the person acted upon or affected thereby" must be considered accidental, even though the accident would not have happened but for a voluntary act upon the part of the person receiving it. Railway Officials & Employés' Accident Ass'n v. Drummond, 56 Neb. 235, 76 N. W. 562; Rustin v. Standard Life & Accident Ins. Co., 58 Neb. 792, 79 N. W. 712, 46 L. R. A. 253, 76 Am. St. Rep. 136. Reversed and remanded. HAMER and ROSE, JJ., not sitting. NATIONAL SURETY CO. v. LOVE. (No. 19958.) (Supreme Court of Nebraska. June 26, 1918.) (Syllabus by the Court.) 1. ATTACHMENT 25-RESIDENCE. "It is the actual residence of the debtor, and not his domicile, which determines the status of the parties in attachment proceedings." Webb v. Wheeler, 79 Neb. 172, 112 N. W. 369. 2. ATTACHMENT 47(4) (Additional Syllabus by Editorial Staff.) The judgment of the trial court is reversed, and the cause remanded for further proceedings. Reversed and remanded. KANE v. BROTHERHOOD OF RAILROAD (Supreme Court of Nebraska. July 8, 1918.) Motion, although in form a special appearance objecting to jurisdiction over the person of defendant, asking that the writ of attachment "be quashed and held for naught," and the court's order quashing the writ, entitled plaintiff, under Rev. St. 1913, § 7776, to appeal. 1. INSURANCE 787-FRATERNAL INSURANCE RECOVERY "COMPLETE AND PERMANENT LOSS OF SIGHT OF BOTH EYES." Appeal from District Court, Sioux County; Westover, Judge. Action by the National Surety Company against Thomas Love. From a judgment quashing the writ of attachment, issued on the statutory ground of nonresidency, plaintiff appeals. Reversed and remanded. Crane, Boucher & Sternberg, of Omaha, and F. S. Baker, of Harrison, for appellant. Allen G. Fisher, of Chadron, and Justin E. Porter, of Crawford, for appellee. CORNISH, J. Appeal from a judgment quashing the writ of attachment, issued on the statutory ground of nonresidency, the trial court finding that the defendant was at the time a resident of Sioux county. The evidence shows that he was not at the time in Sioux county, and that for several months he had spent most of his time in South Dakota. [1, 2] When the inquiry is directed to the place of residence where summons may be served, the one who says it was at some par- -- CERTIFICATE One who is color blind, but whose vision in other respects is unimpaired, has not sufferboth eyes." The fact that plaintiff is a railroad ed "complete and permanent loss of sight of trainman, and on account of color blindness was discharged from his employment, does not entitle him to recover the amount payable under a provision of a benefit certificate that a member of the organization in good standing, "who shall suffer the complete and permanent loss of sight of both eyes, shall be considered totally and permanently disabled"; there being no provision that the term "totally disabled" should mean "totally disabled" from following railroad work. 2. CASE OVERRULED. Routt v. Brotherhood of Railroad Trainmen, 101 Neb. 763, 165 N. W. 141, overruled. LETTON, J. [2] The facts in this case are similar to those in the case of Routt v. Brotherhood of Railroad Trainmen, 101 Neb. 763, 165 N. W. 141. A motion for rehearing in that case has been filed, and will be considered and disposed of with the case at bar. Several questions are presented, but the main and determining question is identical with that presented in the Routt Case. The con If the contention is, as is likely, that defendant's domicile is shown to be in Sioux county, it must be answered that this is not sufficient. Under the attachment statute, the debtor must have a place of residence institution of the defendant provides that a the state, either of a temporary or permanent character, at which a service of summons may be lawfully made. [3] The motion upon which the court acted, although in form a special appearance objecting to jurisdiction over the person of defendant, asks that the writ of attachment "be quashed and held for naught." This motion and the court's order entitle plaintiff, under section 7776, Rev. St. 1913, to appeal. * beneficiary member of the class to which the |