Aetna Life Ins. Co. v. Davis

• Decision Date: 13 October 1911
• Docket Number: 3,581.
• Parties: AETNA LIFE INS. CO. v. DAVIS.
• Court: U.S. Court of Appeals — Eighth Circuit

191 F. 343

AETNA LIFE INS. CO. v. DAVIS.

No. 3,581.

United States Court of Appeals, Eighth Circuit.

October 13, 1911

Clement A. Lawler (W. T. Johnson and Clarence S. Palmer, on the brief), for plaintiff in error.

Leslie J. Lyons (George L. Davis, on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and MARSHALL and W. H. MUNGER District judges.

MARSHALL District Judge.

This action is based on a policy of accident insurance issued by the insurance company, plaintiff in error, to Daniel F. Cobb by which it insured Cobb against disability or death resulting directly from bodily injuries effected solely through external violent and accidental means. The sum to be paid in case of death was $5,000, subject, however, to be doubled if death resulted from any of certain specified accidents. Section 7 of the policy provided:

'If such injuries are sustained * * * while insured is riding as a passenger * * * in an elevator provided for passenger service, * * * the amount to be paid * * * shall be double the sum otherwise payable for such injuries; but the increased benefits provided by this section 7 shall not apply to any accident or injury, fatal or otherwise sustained while getting on or off or being upon the steps of any railway or street railway car.'

Cobb received an accidental injury resulting in his death. The insurance company paid to his widow, Ada M. Cobb (now Ada M.

Davis, the defendant in error), the beneficiary named in the policy, the $5,000 fixed in the policy as the limit of ordinary liability. The beneficiary claims that the insured was injured 'while a passenger in an elevator provided for passenger service, ' and hence that the insurance company is subject to a double liability. This action was brought to enforce this contention, and resulted in a verdict and judgment in favor of the beneficiary. For a reversal of this judgment the principal contention of the plaintiff in error is that it was entitled to a directed verdict, as requested by it, for the reason that the evidence fails to show that at the time of the accident Cobb was in an elevator, or that that elevator was then provided for passenger service. This requires a somewhat detailed statement of the circumstances attending the accident.

Cobb was a real estate dealer, and had an office on the fourth floor of the Fidelity Trust Building in Kansas City. There was a passenger elevator in that building for the use of the tenants and others properly resorting there. This elevator was operated by a specially selected operator from an early hour in the morning until 6:30 p.m., when it was ordinarily shut down and the operator went home. After the closing hour the janitors of the building were permitted to use the elevator for their purposes. There was evidence, though not undisputed, that Cobb had a special arrangement with the vice president and general manager of the company owning the building, and duly authorized to act in its behalf, to the effect that twice a month, when he desired to assemble in his office prospective purchasers for Texas lands after the usual closing time of the elevator service, he might use this elevator and one of the janitors would act as operator. The night of the accident was one of these occasions. At about 7:30 p.m. on that night Avery, a janitor, was operating the elevator. Cobb was seen to stop at the door of the elevator shaft on the fourth floor. Soon after, he was heard to cry out:

'Oh. my God; he has crushed my foot.'

Another of the janitors, hearing a noise, went to the shaft to investigate. The elevator cage was then from four to five feet above the fourth floor, and Avery said to him:

'My God. Will, I have killed old man Cobb; he has fallen down the elevator shaft, and for God's sake run down.'

Cobb's body was found at the bottom of the shaft. His left foot had been crushed, and the shoe had been torn from it. This shoe was found in the grille work or grating of the elevator shaft; the toe of the shoe pointing downward, most of the sole protruding, but the heel still within the shaft. This shoe was so found at a point in the shaft above the door on the fourth floor. Avery, the janitor, is the only living eyewitness to the accident. He described it in this way:

'Mr. Cobb wanted to come down. I stopped with the elevator a little too high, and as I came down I touched the spring. He shoved the door open and stepped up. His toe was a little bit over the landing of the elevator and I was on it, and he made some exclamation as if in pain, or 'Oh.' or something, and I reversed the power and went up some little distance-- I am not sure exactly how high. Mr. Cobb, in

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