United States Fidelity & Guar. Co. v. Aschenbrenner
| Decision Date | 26 June 1933 |
| Docket Number | No. 7110.,7110. |
| Citation | 65 F.2d 976 |
| Parties | UNITED STATES FIDELITY & GUARANTY CO. v. ASCHENBRENNER. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Horace W. B. Smith and George A. Work, both of San Francisco, Cal., for appellant.
Wright & Wright & Larson, John Ralph Wilson, and Randell Larson, all of San Francisco, Cal., for appellee.
Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.
Except in minor respects, the facts in this case are undisputed. In the following summary, we are adopting the interpretation of the facts most favorable to the appellee.
The appellant issued a policy of insurance under which Walter Aschenbrenner, hereinafter referred to as the decedent, was the assured, and the appellee, who was the plaintiff below, was the beneficiary. The policy provides for a payment of $7,500 as the principal sum against loss of life resulting directly and independently of all other causes from accidental bodily injuries.
The policy further provides for double indemnity payable as follows:
The only issue in this case is whether the double indemnity or only the single indemnity is payable under the facts. The appellant conceded at the trial that it was liable for the single indemnity; the accidental death being established. The only question in the case is whether, at the time of the decedent's fatal injuries, he was a "passenger" on or in a common carrier, within the terms of the policy.
About 7:35 in the morning of October 29, 1931, the decedent and a friend, a Mr. Ishem, arrived at the Southern Pacific Broadway Station in Burlingame, Cal., in a taxicab. The cab drew up at a distance of between 25 to 40 feet from a train, which was just commencing to pull out of the station. The decedent paused a moment, fumbling for money with which to pay the taxicab driver, who told him to go on and pay him that night; whereupon the decedent and his companion commenced running for the train across the station platform.
The train was headed north, bound for San Francisco. The two men ran somewhat on a diagonal toward the track. Ishem was on the left and a little ahead. He did not attempt to board the train, but stopped as he came to it.
When the two men reached the train, it was moving at a rate of speed estimated at from seven to ten miles an hour.
The decedent was running for the front platform of the second to the last car on the train, and Ishem was running for the rear platform of the third car from the rear of the train. The vestibule doors were open, because, according to a brakeman who testified, "the train was not out of the station." Another witness testified that the vestibule doors were never closed.
The decedent jumped upon the lower step, his right hand grasping the handrail, and, while standing there, he was carried to where Ishem stood.
The cause of the accident, as indicated by the testimony of three of the witnesses, was that, as the train moved forward, carrying the decedent to the point where Ishem stood, the decedent's overcoat or the small part of the decedent's body outside of the vestibule, brushed against Ishem and caused the decedent to lose his hold and fall. From the time he jumped on the train until he was carried to the point where Ishem stood, the decedent was standing with both feet on the lower step of the car and inside the vestibule, except for a small part of his body, which was outside. The decedent was carrying his overcoat over his left arm and a brief case in his right hand. After he was on the step, he "apparently started to change hands with his overcoat or brief case."
The train proceeded about twenty feet when the decedent fell. The cause of his fall is not clear. While, as we have seen, three witnesses said that the decedent brushed against Ishem, the remaining witnesses did not know what caused him to fall.
The decedent swung out from the train, holding only with his right hand, was thrown against the side of the car, and fell between the platform and the track, and was crushed, dying at a hospital a few hours later.
Both sides made timely motions for a directed verdict in their respective favor. All such motions were denied, exceptions were duly taken, and the case was submitted to the jury. The verdict was for a double indemnity, or $15,000. From a judgment rendered on that verdict, the defendant company appeals.
While there are three assignments of error, our decision upon the first is determinative of the case. That assignment is to the effect that the trial court erred in denying the appellant's motion for a directed verdict as to the appellee's claim for double indemnity. The correctness of that assignment, in turn, depends upon whether or not the decedent was a "passenger" on the train at the time of his death; or if, as a matter of law from the facts in the case, interpreted so as to give the appellee the benefit of every substantial conflict, the decedent was not a passenger at the time he fell, then clearly the trial court should have directed a verdict for the appellant on the double indemnity feature of the case.
The adjudicated cases dealing with the precise point involved are not numerous, particularly those decided by federal courts. Furthermore, there is some conflict in the authorities. For these reasons, we will quote frequently and fully from the leading cases in point, instead of following our usual practice of quoting only a few authorities and citing the rest.
It may be conceded at the outset that a policy is to be construed strictly against the insurance company and liberally in favor of the insured. Nevertheless, the Supreme Court of the United States has definitely fixed the boundaries of this liberality in favor of the insured. In Ripley v. Railway Passengers' Assur. Co., 16 Wall. (83 U. S.) 336, 338, 21 L. Ed. 469, Mr. Chief Justice Chase, in dealing with an accident insurance policy, said:
Applicable here also is the language of the St. Louis Court of Appeals in Mitchell v. German Commercial Accident Co., 179 Mo. App. 1, 161 S. W. 362, 363, 364: "Though it be that the language of insurance contracts is to be construed most favorably to the insured and against the insurer with a view to effectuating the insurance, and that all doubtful language is to be resolved in favor of the insured, the courts are not authorized to seize upon certain and definite covenants expressed in plain English with violent hands, and distort them so as to include a risk clearly excluded by the insurance contract."
The appellee contends that, in a case of this kind, the court should construe the word "passenger" in its "plain, ordinary, and popular sense." During the oral argument before this court, counsel for the appellee suggested the dictionary definition of "passenger," such as "a person who travels in a public conveyance," as applicable here. But such a definition would include members of a train crew, who, even in the "popular" sense, are not considered "passengers."
It must be remembered, after all, that the policy in question is a legal document, solemnly executed, and that such document is being construed in a court of law. We can see no reason why the parties to this contract did not intend that the terms used should have their usual legal signification. Indeed, both reason and authority point to the opposite conclusion.
The term "passenger" is used primarily in contracts, whether express or implied, between carriers and those who are transported by them. It would seem, therefore, that, for the proper definition of the term "passenger," we should turn to the law of carriers.
This suggestion, however, has been vigorously resisted by counsel for the appellee, both in the brief and in the oral argument. Counsel makes the somewhat unusual contention that "passenger" means one thing in the law of carriers and quite another in the law of insurance.
We cannot subscribe to this view, for we believe that it finds support neither in logic nor in authority. Both legal reasoning and legal language would become hopelessly obscure and confused if definitions, instead of being in truth "definite," could thus be shifted about.
We believe that the rule is properly expounded in Cooley's Briefs on Insurance (2d Ed.) vol. 6, p. 5590: (Italics indicate bold-faced type in the text.)
This rule was recognized in the case of Travelers' Ins. Co. v. Austin, 116 Ga. 264, 42 S. E. 522, 524, 59 L. R. A. 107, 94 Am. St. Rep. 125, in which the Supreme Court of Georgia said: "With this in view, the true test to be applied to determine whether one injured in a railroad accident can recover from an insurance company double indemnity is to inquire whether, presuming that a right of action exists against the railroad company, the plaintiff would be entitled to sue that company in the capacity of a passenger or an employee."
In that case, the court held that the decedent was solely an employee and not a passenger of the company.
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