Ashenfelter v. Employers' Liability Assur. Corp.

• Decision Date: 09 May 1898
• Citation: 87 F. 682
• Parties: ASHENFELTER v. EMPLOYERS' LIABILITY ASSUR. CORP., Limited, OF LONDON, ENGLAND.
• Court: U.S. Court of Appeals — Ninth Circuit

87 F. 682

ASHENFELTER v. EMPLOYERS' LIABILITY ASSUR. CORP., Limited,

OF LONDON, ENGLAND.

United States Court of Appeals, Ninth Circuit.

May 9, 1898

R. J Danson and William A. Huneke, for plaintiff in error.

L. C Gilman, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

This action was brought in the court below by the plaintiff in error against the defendant in error to recover the amount of an accident insurance policy issued by it upon the life of one H. C. Ashenfelter, since deceased. The amended answer of the defendant admits the averments of the complaint in respect to its corporate existence, the issuance of the policy in consideration of the payment of the required premium, the death by accident of the insured, and the nonpayment of the amount for which the policy was issued. It denies the averment of proof of death, but that fact was admitted on the trial. The answer alleges the fact that the policy does not insure against 'voluntary exposure to unnecessary danger,' and further alleges that the accident by which the insured lost his life was caused by his voluntary exposure to unnecessary danger, and that was the real defense made at the trial. On the conclusion of the testimony, the defendant, by its counsel, moved the court to instruct the jury to return a verdict for the defendant, upon the ground that the evidence showed that the deceased lost his life by reason of having voluntarily exposed himself to unnecessary danger. The court so instructed the jury, and a verdict was returned as directed. The plaintiff duly excepted to the action of the court, and brings the case here by writ of error.

The evidence in the case shows that the deceased was a contractor of great energy and of extensive business, and, at the time of his death, was engaged in the performance of a contract with the state of Washington for the erection of buildings for its university, which were nearing completion. Among them was a large tank for the storage of water. The tank itself was 16 feet in diameter, and 17 feet high, and rested on a platform constructed upon a trestle rising 75 feet above the ground. Every ninth stay of the tank extended upward about 14 inches, and upon these stays so extended was constructed a roof having a projection of 3 feet beyond the outer edge of the tank. Through the spaces thus left, ingress and egress was had into and out of the tank by means of a ladder. The platform projected from 14 inches to several feet beyond the tank, the projection being greatest at the corners, which were square, and of which projection about 6 inches in width was occupied by a railing. For the purpose of making the tank water-tight, it became necessary to calk the seams with oakum, and to mop them with a mixture of heated pitch and tar. It was in preparing and applying that mixture that the insured lost his life. Although, as has been said, the deceased was a contractor of extensive business (the contract with the university aggregating about $117,000), the evidence shows without conflict that he was a man of such energy that when any part of the work he had contracted for lagged, he turned his hand to it, and pushed it along, until properly under way. It was in this way that he went with a workman named Gallagher to make water-tight the tank. Gallagher and he only were in the tank at the time of the fatal accident, and Gallagher's deposition was taken on behalf of the defendant, and introduced in evidence. In answer to a question asking him to describe as briefly and accurately as he could the circumstances under which the deceased was killed, the witness said:

'We started in to work on Sunday morning. He came to me before that. Harry (deceased, Ashenfelter) spoke to me on Saturday, and he said, 'Will you come over and work to-morrow?' And I said, 'If there is anything pressing, I have no objection;' and he said it was. So, we came on over to the tank at ten o'clock. On going over there, he said, 'Have you been in the tank?' And I said, 'I have not.' He said, 'Come up and come in,' and we went up in the tank. There was about six inches of water in it, and we drained it out by boring plug holes in it, to keep the sediment from pouring down. There would be six inches of water there, and we went and bored the holes in there; and Harry said, 'We must dry this tank up, so we can see what we can do with it.' I said: 'There is a salamander over to the little observatory which I used in drying the plaster on the observatory. If you want it, Harry, you can take it.' He says: 'All right; the next thing is to get it in.' We went and measured the space, and we found it was in the neighborhood of fourteen inches; and we took and flatted up the salamander, so as to get it in there. So, we put the ladder up against the tank, and looked over into the tank, and Harry said, 'The only thing we can do is to calk the tank.' The seams were a little open. And I said, 'All right; we will get in and calk it.' I said, 'There is plenty of oakum over there.' I don't know but he carried the oakum, and I got some calking irons, and started in calking, till about eight o'clock. We have two lamps in the office, and we were working with them; and he went out of the tank possibly in the neighborhood of half-past seven or eight, and I followed him; and we came over to the building, and came back Monday morning, and finished the calking. Monday, about noon, I should judge, we got through with the calking of the tank. He took no part whatever in the calking of the tank. He carried the oakum to me, and I got through calking, and he got some paints from Baker & Richards, called 'paraffine paints,' supposed to be applied on tanks for to preserve it, and also to purify the water. We looked over that material, and found it to be pretty thin. It was heavy paint, but not sufficiently heavy to cover the seams in good condition; and we concluded to put pitch on the top of the seams, or on the top of the oakum, so as to make it water-proof. So the first kettle we heated below, and it became stiff at the time we got it into the tank. He said, 'We will use that old

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