Davis v. Jessup

• Decision Date: 14 November 1924
• Docket Number: No. 4032-4034.,4032-4034.
• Parties: DAVIS, Agent etc., v. JESSUP. SAME v. McCREE (two cases).
• Court: U.S. Court of Appeals — Sixth Circuit

2 F.2d 433 (1924)

DAVIS, Agent etc., v. JESSUP.

SAME v. McCREE (two cases).

Nos. 4032-4034.

Circuit Court of Appeals, Sixth Circuit.

November 14, 1924.

Alex L. Smith, of Toledo, Ohio (J. W. Dohany, of Detroit, Mich., on the brief), for plaintiff in error.

Harold W. Fraser, of Toledo, Ohio (Marshall & Fraser and Percy R. Taylor, all of Toledo, Ohio), for defendants in error.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

MACK, Circuit Judge.

The first of these three actions, which were tried together before one jury, and in each of which the plaintiff on verdict recovered a judgment, was brought by defendant in error, as administratrix of the estate of Leroy Jessup, to recover damages for causing Jessup's death; the other two were brought by defendant in error, Reno McCree, one for personal injuries sustained by him, and the other for the loss of services of his wife, due to personal injuries sustained by her. The death and the injuries were charged to have been due to defendant's wanton and willful negligence, resulting in a collision in the state of Indiana in June, 1918, between a troop train and a circus train, both operated by defendant. The details are set forth in two earlier opinions of this court in an action by McCree's wife against the same defendant. See 280 F. 959; 299 F. 142 (writ of error dismissed and certiorari denied by the Supreme Court October 20, 1924, 45 S. Ct. 94, 69 L. Ed. ___).

We abide by the views therein expressed as to the contract between the circus company and the carrier with reference to exemption from liability to the circus employés and as to liability of the Director General for the wanton negligence of the carrier employes. That the evidence required the court to submit the issue of wanton negligence to the jury need not be elaborated; it suffices to indicate that, while the positive testimony fell short of that in the second McCree trial, it exceeded that which we held sufficient in the first trial. It was, however, also proven that the engineer was in the courtroom during the trial; he was not produced as a witness; the jury could properly consider this failure to call him, in weighing the evidence.

After the fireman had described concretely the position and appearance of the engineer, objection was sustained to the further question, "When you saw the engineer, just before the accident, how did he appear to you?" and to the offer to prove that he would have answered that, when he saw the engineer in the position indicated, he appeared to the witness as being unconscious. While apparent unconsciousness, like apparent insanity (see Conn. Mutual Life Ins. Co. v. Lathrop, 111 U. S. 612, 4 S. Ct. 533, 28 L. Ed. 536), may be testified to by a layman, and while the witness might have been permitted to answer the question, we can find no reversible error in its exclusion; the real issue was not whether the engineer was conscious or unconscious at the time, but whether the apparent unconsciousness was apparently that of sleep or of illness. Counsel was careful to avoid putting that question, as he was to avoid calling the engineer to the witness stand. The immateriality of any error seems the clearer, in view of the fact which the record discloses that the fireman had only a momentary glimpse of the engineer before the crash.

In the Jessup Case it is further contended that, while under section 13 of the Workmen's Compensation Act of Indiana (Acts 1915, c. 106)¹ an injured employé has an option to claim compensation or to sue the third person claimed to have caused the injury, in a death case compensation alone is available to the administratrix. The basis for this contention is that while by section 6 of that act the rights and remedies thereby granted an employé exclude all other rights and remedies of himself or his representatives at common law or otherwise for injury or death, the right "against some person other than the employer" is preserved only to the "injured employe." We think it clear, however, that the expression "injured employe" should be construed to cover the administratrix in case of death. While the act was amended in 1919 (Acts 1919, c. 57) to remove any possible doubt as to this construction, the...