Cotten v. Fidelity & Cas. Co.

• Citation: 41 F. 506
• Court: U.S. District Court — Southern District of Mississippi
• Decision Date: 17 January 1890
• Parties: COTTEN v. FIDELITY & CASUALTY CO.

41 F. 506

COTTEN v. FIDELITY & CASUALTY CO.

United States Circuit Court, S.D. Mississippi, Western Division.

January 17, 1890

Dabney McCabe & Anderson, for plaintiff.

Miller Smith & Hirsh, for defendant.

HILL J.

This is an action brought by the plaintiff, Mrs. Theresa Cotten against the defendant corporation, to recover the sum of $3,000, with interest, alleged to be due upon an accident insurance policy, issued to William M. Cotten, the son of the plaintiff, for her benefit in case of his death from accidental causes.

The questions now for decision arise: (1) Upon defendant's motion for leave to file two additional pleas to plaintiff's declaration; (2) upon defendant's motion for a peremptory instruction to the jury to return a verdict for it; and (3) on the plaintiff's motion for a peremptory instruction to the jury to return a verdict for her. These several motions are made at the conclusion of the evidence on both sides, and will be considered in the order stated, after a statement of the facts established beyond dispute, which are as follows:

Cotten to whom the policy was issued, was a young man about 32 years of age, of rather small stature, was inclined to be near-sighted, and usually wore glasses to aid his vision, but could see without them, and had been engaged for some 12 years on the Vicksburg & Meridian Railway, as a seller of books, newspapers, etc., usually sold by such persons, as baggage-master, and for some time before, and at the time the policy was issued to him, as transfer agent on the railroad; his business mainly being to meet the passenger trains at Jackson, or between Vicksburg and Jackson, and take up the checks of the baggage designed for other lines of transportation and destination, and place thereon the checks of the transfer company in whose employment he was, and which transfer company was employed by the railroad company to perform that service, which service was necessary to be done for the railroad in conducting its business. Getting on moving trains was shown to have been an incident of his business. Cotten was on the railroad, and engaged in this business, when the contract of insurance was entered into between him and one Strong, the agent of the defendant, who issued the policy, and received the order on Charles Wheeler, who was the manager of the transfer company, and Cotten's employer, for the payment of the premiums, payable in four installments, which premiums would have been paid by Wheeler according to the terms of the order if application had been made to him therefor, but which order was never presented to the drawee, or payment demanded. The application for the policy and the policy constitute the contract between the parties, and each contains the usual conditions and stipulations found in contracts of this character, only a few of which need be stated to an understanding of the questions raised by the motions. The application is for a policy of insurance against bodily injuries, effected through 'external, violent, and accidental means,' which policy was based upon the following statement of facts, warranted to be true: That assured's occupation was transfer agent; that he was 32 years of age, and resided in Vicksburg; that his employer was the Vicksburg Transfer Company, and his wages were $75 per month; the amount of insurance to be $3,000 in case of accidental death, payable to plaintiff, his mother; amount of weekly indemnity for totally disabling injuries not to exceed $15; that he had never had, nor was he then subject to, fits, disorders of the brain, or any bodily or mental infirmity. The premiums to be paid for the time for which the insurance was taken all together amounted to the sum of $30. Upon the bank of the policy is a condition that the policy shall not cover injuries resulting from the following causes:

'Entering, or trying to enter or leave, a moving conveyance, using steam as a motive power; riding in or on any such conveyance, not provided for the transportation of passengers; walking or being on any railway bridge or roadbed. Railroad employes excepted. * * * Voluntary exposure to unnecessary danger. * * * '

On the 26th day of January, 1888, Cotten met the passenger train coming from Jackson to Vicksburg at the depot at Jackson, and went into the baggage-car, and hung up his overcoat and ring on which were his transfer checks, stating that he had to go across the street, but would return. Soon after this train backed down on the switch, and entered on the main track to Vicksburg. There is on the side of the track just west of the crossing on Capitol street a coal chute, where the train usually stopped and took on coal when going towards Vicksburg; and the intention of the engineer was to stop for that purpose at that time, until he got near the chute, when learning from his fireman that it was not necessary, went on. The train was then running at a rate of speed of between four and six miles per hour, and this was its speed when Cotten attempted to get on it; he having come up Capitol street to the point where the baggage-car usually stood when the engine was receiving coal. Assured, while attempting to get on the train, as is supposed, (no one having witnessed the accident,) by some misstep or other accident was thrown under the train, and one limb was severed from his body by the wheels, from which injury he died the same evening. Some time after Cotten's death, Strong, the agent of the defendant, who took the application and issued the policy, and the only agent which defendant, at that time, had in this state, made an examination of all the circumstances connected with Cotten's death, and afterwards demanded of plaintiff the payment of the $30, the sum of the installments agreed to be paid, promising that the full amount of $3,000 would be paid within the time specified in the policy, and received from the plaintiff the money, for which he, as such agent, gave a receipt, and sent the money to the general agent of the defendant at Chicago, Ill., who some time afterwards returned the money to plaintiff, who immediately sent it back to the general agent, and demanded the payment of the policy. The general agent declined to accept it, and refused to pay the policy, upon the ground that the premium had not been paid before the death of Cotten. Cotten was classed as a 'medium' risk, which classification embraces baggage-masters, express...