Employers' Indemnity Corporation v. Grant

• Decision Date: 15 March 1921
• Docket Number: 3492.
• Parties: EMPLOYERS' INDEMNITY CORPORATION v. GRANT.
• Court: U.S. Court of Appeals — Sixth Circuit

271 F. 136

EMPLOYERS' INDEMNITY CORPORATION v. GRANT.

No. 3492.

United States Court of Appeals, Sixth Circuit.

March 15, 1921

H. I Armstrong, of Detroit, Mich. (Sibley, Armstrong, McNair &amp Mead, of Detroit, Mich., on the brief), for plaintiff in error.

Frank T. Lodge, of Detroit, Mich. (Lodge & Brown, of Detroit Mich., on the brief), for defendant in error.

Before KNAPPEN and DONAHUE, Circuit Judges, and WESTENHAVER District judge.

WESTENHAVER District Judge.

This action is based on a policy of accident insurance issued October 31, 1917, to Alexander Grant, by occupation a passenger conductor on the Wabash Railroad, whereby the plaintiff in error insured Grant 'against loss resulting directly and independently of all other causes, from bodily injuries effected solely through external, violent and accidental means. ' The insured having met his death while the policy was in force, Myrtle Grant, the beneficiary, brought this action and recovered judgment for the full amount of the policy. This error proceeding is prosecuted by the insurer to reverse that judgment. The main ground relied on for reversal is that the insured's death was not accidental within the true meaning of the policy. This question was raised by a motion for a directed verdict and by numerous requests to charge, and is preserved by several of the assignments of error. The disposition of it requires a brief statement of the evidence.

The insured, while on duty as a passenger conductor, was on June 12, 1918, shot and killed by a colored passenger, James Morgan, at Montpelier, Ohio, a junction and terminal point of the Wabash Railroad. A few minutes before reaching Montpelier, Morgan, who had boarded the train at Chicago with a ticket entitling him to travel to Adrian, Mich., had entered the toilet room and had locked the door on the inside. The conductor's duty, as evidenced by bulletins and rules offered in evidence, required him, while this train was lying at Montpelier, to see that the toilet room was closed, locked, and kept out of use. What happened thereafter depends on the testimony of three witnesses--Albert H. Doyle, an express messenger, Frank Anderson, a colored news agent, and James Morgan, the man who did the killing, and whose deposition was taken after he had been tried, found guilty of first degree murder, and sentenced to be electrocuted. This evidence, viewing it, as is our duty, in that aspect tending most favorably to support the verdict, tends to show these facts:

The conductor, shortly after the train came to a stop, tried the toilet room door, and, finding it occupied and locked on the inside, requested, directed, and finally ordered, Morgan to unlock the door and come out. Morgan answered some three or four times that he could not do so, notwithstanding the conductor repeatedly instructed him that all he had to do was to shove back the bolt and open the door. This conversation was exchanged in an ordinary manner and without any threats of violence or display of anger on either side. Morgan, for some unknown reason, was evidently unwilling to comply with the conductor's order and vacate the toilet, and the conductor evidently interpreted his conduct and replies as a refusal so to do. At some time in the course of this controversy, if such it be, the conductor had stood on the arm and back of the car seat next to the toilet room and had looked in over its glass top. What the conductor saw he related to no one. Morgan, however, says that he was then buttoning up his 'pants,' and that his revolver was in a small handbag which he had with him. Anderson, the news agent, saw Grant try the door, but does not relate, even if he heard, the remarks then exchanged. At some time, probably after Grant had left, Anderson also got on the arms of the car seat and looked in at which time he says Morgan was standing on the toilet seat in such an unusual position and attitude that he quickly jumped down. He saw, however, no revolver in Morgan's possession.

Grant left, and there is some discrepancy as to the space of time which elapsed before his return. He went to the express car, got a loaded revolver, and returned, followed by Doyle, the express messenger. In answer to some remarks, Grant said: 'Well, I want to scare him out. ' Upon returning, he got up again on the arms of the car seat, holding by his left hand to an air valve at the side of the car, and, holding the revolver with his right hand clasped around the cylinder, displaying both ends of it, he tapped lightly on the glass top of the toilet, saying, 'Come out of here.' At approximately the same time, and as soon as his head appeared above the wooden side of the toilet room, a pistol shot sounded, and Grant fell dead to the floor. This shot was fired by Morgan. The bullet entered Grant's forehead just above and slightly to one side of the base of the nose.

A jury would be warranted in finding that the tapping, order, or request, and the appearance of Grant's head above the wooden side of the toilet room, were substantially simultaneous with the firing of the shot, and that Grant had no knowledge that Morgan was armed, or, except as may be inferred from this statement of the evidence, was intending violence. All the testimony tends to show that Grant was in good humor and unexcited, and was not discourteous or violent, or threatening in speech or manner. Morgan's testimony and counsel's inferences, so far as they conflict, if at all, with the foregoing statement of the evidence, must in this proceeding be disregarded.

The trial judge submitted to the jury the issue as to whether Grant's death was due to accidental means. In doing so, he charged the jury in substance that they should approach this question from the stand-point of Grant at the time and under the circumstances as they appeared to him; that his death was not accidental, or covered by the policy, if Grant anticipated, or, under the circumstances, should have anticipated, the fact that Morgan might act in the way he did; and that the burden of proof was upon the beneficiary to show that Grant's death was caused by an agency which, independently of all other causes, constituted an accident; but that, on the other hand, if Grant did not anticipate, or have reason to anticipate, in the light of all the circumstances, that he would get shot, then his death was accidental, and the beneficiary might recover.

In submitting to the jury upon this evidence the issue as to whether Grant's death was accidental, and in thus charging, we perceive no error...