78 F. 754 (6th Cir. 1897), 439, Travelers' Ins. Co. v. Randolph

Docket Nº:439.
Citation:78 F. 754
Case Date:February 02, 1897
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 754

78 F. 754 (6th Cir. 1897)




No. 439.

United States Court of Appeals, Sixth Circuit.

February 2, 1897

Page 755

J. K. Flippin and Luke E. Wright, for plaintiff in error.

Geo. Randolph, Samuel Holloway, and Wm. M. Randolph, for defendant in error.

Before HARLAND, Circuit Justice, LURTON, Circuit Judge, and SAGE, District Judge.

HARLAN, Circuit Justice.

This is an action upon insurance contracts evidenced by an annual policy and two accident tickets issued to Albert G. Mitchell by the Travelers' Insurance Company of Hartford, Conn. There were a verdict and judgment for the plaintiff.

By its policy of June 5, 1894, that company insured Mitchell, a bookkeeper by occupation, in the sum of $50 per week, against loss of time, not exceeding 26 consecutive weeks, resulting from bodily injuries effected through external, violent, and accidental means, which should, independently of all other causes, immediately and wholly disable him from transacting any kind of business pertaining to his occupation. If death ensued from such injuries alone within 90 days, then the company agreed to pay the sum of $10,000 to the legal representatives of the assured. But the policy declared that the insurance did not cover 'disappearance; nor suicide, sane or insane; nor injuries of which there is no visible mark on the body (the body itself in case of death not being deemed such mark); nor accident, nor death, nor loss of limb or sight, nor disability, resulting wholly or partly, directly or indirectly, from any of the following causes, or while so engaged or affected: Disease or bodily infirmity; hernia; fits; vertigo; sleep-walking; medical or surgical treatment, except amputations necessitated solely by injuries, and made within ninety days after accident; intoxication or narcotics; voluntary or involuntary taking of poison, or contact with poisonous substances, or inhaling of any gas or vapor; sunstroke or freezing; dueling or fighting; war or riot; intentional injuries (inflicted by the insured or by any other person); voluntary overexertion; violating law; violating rules of a corporation; voluntary exposure to unnecessary danger; expeditions into wild and uncivilized countries; entering or trying to enter or leave a moving conveyance using steam as a motive power, except cable cars; riding in or on any conveyance not provided for transportation of passengers; walking or being on a railway bridge or roadbed (railway employes excepted).'

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The same provisions, substantially, are set forth in the accident tickets issued by the company.

The defendant pleaded that it did not owe the plaintiff in manner and form as alleged, and that proper proofs of death were not furnished.

It also pleaded: That the assured committed suicide on the 9th day of November, 1894, by 'voluntarily, and with intent to take his life, jumping off ' a train of cars, en route from St. Louis to Memphis, Tenn., and which at the time was moving 35 miles an hour, he being a passenger on such train.

That the assured 'intentionally and of a purpose sprang or jumped' from said train, with the intent of inflicting injury upon himself, and, as a result thereof, he was dashed against the ground with great violence, receiving injuries from which he shortly afterwards died.

That when the train approached Memphis, at the rate of 35 miles an hour, the assured voluntarily and unnecessarily left his seat in the sleeping car, where he was safe and free from danger, and went out of such car and upon its platform, thence to the rear platform of the next car ahead, thence to the lower step of the lastnamed platform, the same being a very dangerous place, from which, by any sudden jar or movement of the car, he was liable to fall or be thrown from the train; that, in standing on said lower step of the platform, it was necessary for him to hold to the hand railing provided on each side for the use of persons getting off and on the car; that while in that position, the cars moving at a high rate of speed, he was in great danger of losing his hold by reason of the moving of the car or from other causes, and of being thrown from the step, and injured or killed, 'all of which danger was obvious and well known to the said Mitchell'; that the assured went into said place of great and unnecessary danger without any reasonable cause therefor, and, while there, 'fell or sprang' from the car step, receiving great injuries, from which he shortly died; and that, by reason of this voluntary exposure of the assured to unnecessary danger, the contract of insurance between him and the defendant did not attach or become operative, nor cover the injuries and resulting death of the assured.

That the insured, while the car was moving at the rate of 35 miles an hour, attempted to leave, and did leave, the same, by 'stepping or leaping' therefrom, and thereby he was thrown to the ground with great violence, and received injuries from which he shortly thereafter died.

The while standing upon the lower step of the rear platform of the car immediately in front of the sleeping car, as above stated, the insured was intoxicated, and, being so intoxicated, either 'fell or sprang' from such step when the car was moving at the above rate of speed, and was dashed violently against the ground, receiving fatal injuries, from which he shortly died. And

That the assured came to his death by reason of his standing upon the platform, as above stated, in violation of a rule of the railroad company which was then, and had been for many years,

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in force, forbidding passengers to stand or ride on the platform of its cars while they were in motion.

The plaintiff filed replications, which put in issue all the material facts set out in the several pleas.

Mitchell was a resident of the city of Memphis, where for many years prior to his death he had been employed as a bookkeeper. He was unmarried, about 46 years of age, and lived with a widowed sister and her children in that city. It seemed to have been his habit when traveling any distance on railroads to buy accident tickets, and, when his relatives went from home, he bought tickets of that kind for them.

He left Memphis in June, 1894, to go to St. Louis, holding at the time two annual accident policies for $10,000 each, namely, the one here in suit, issued by the Travelers' Insurance Company, and the other issued by the Fidelity & Casualty Company. Before leaving him, he increased his accident insurance by buying $18,000 of tickets that were good for a few days only, and left them in a package addressed to Wm. M. Randolph, his attorney, with a writing appointing the latter as his executor, without bond or report, and directing the disposition of the above sum. This package was found, after his death, in the safe of the Hill Shoe Company, of which he was assignee.

It does not appear what particular object Mitchell had in going to St. Louis, nor what he did while in that city. He remained there about five months. While there, he bought the accident insurance tickets in suit. One of the persons who sold him the tickets testified that he did not know that Mitchell would have bought so much insurance if he (the insurance agent) had not forced it upon him. Before leaving St. Louis he placed his insurance policies in an envelope addressed to W. M. Randolph, his attorney at Memphis, and sent the package by express. He also telegraphed to W. M. Randolph & Sons from St. Louis: 'Leave to-night on Chesapeake & Ohio. Will be at your office to-morrow at 9.'

He left St. Louis for his home on the evening of the 8th of November, 1894, and was due at Memphis at 7:55 the next morning. The train on which he traveled was composed of a sleeping car, two ordinary passenger cars, and a baggage car. He occupied a seat in the sleeping car. He arose quite early on the morning of the 9th, and was seen several times standing on the platform of the cars, while the train was moving 15 to 25 miles an hour. At one time he stood with both feet on the platform, and with his back against the side of the door of the car. At another time, according to some of the evidence, he held onto the railing, with one foot on the platform, and the other on the top step of the platform.

The colored porter of the sleeping car was examined as a witness for the defendants. He testified that he first saw Mitchell, the morning of the 9th, standing on the platform of one of the coaches, when the train was about 25 miles from Memphis; that he heard the deceased ask the conductor several times how far

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it was to Memphis; and that, when he came out to wipe off the hand rails of the car, Mitchell and a little boy were on the platform together, Mitchell standing on the lower step, and the boy just going into the door of the ladies' coach. The witness said that Mitchell, when last seen by him, was on the lower step, holding with one hand to the rail attached to the body of the car, and with the other to the platform railing, 'one foot up like a man going to jump off, and the other foot on the lower step,'-- 'standing like a railroad man who was going to jump off. ' He also testified that in about 'a minute or a half minute, a short time,' he observed that Mitchell 'let all hold go, and fell back; released his hold, and went back'; that he rushed to the front of the car, to find the conductor, and report what had occurred; that the train was immediately stopped, and was backed, until it came to the place where Mitchell was lying across a side track; that the body was at once put into a baggage car, and Mitchell died in a few minutes thereafter, just before the train reached Memphis.

The little boy who was seen by the porter on the...

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