Prinsen v. TRAVELERS'PROTECTIVE ASS'N OF AMERICA
| Decision Date | 27 July 1933 |
| Docket Number | No. 752.,752. |
| Parties | PRINSEN v. TRAVELERS' PROTECTIVE ASS'N OF AMERICA. |
| Court | U.S. Court of Appeals — Tenth Circuit |
J. H. Peterson, of Pocatello, Idaho, and Harley W. Gustin, of Salt Lake City, Utah (D. Worth Clark, of Boise, Idaho, on the brief), for appellant.
Paul H. Ray and Robert L. Judd, both of Salt Lake City, Utah (Emmett M. Bagley, of Salt Lake City, Utah, on the brief), for appellee.
Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.
Appellant brought this suit as the named beneficiary in a certificate of membership that had been issued to her husband by appellee, a Missouri corporation. The certificate provides for payment of $5,000 to the beneficiary, "whenever a member in good standing shall, independently of all other causes, through external, violent and accidental means, receive bodily injuries which shall solely and exclusively cause death. * * *" It is not questioned or doubted that the member James Prinsen, appellant's husband, was a member in good standing on February 3, 1931, when he came to his death in the manner stated supra in the certificate. He was killed at a highway crossing when an auto truck loaded with dynamite caps, on which he was riding, was struck by an engine of a passenger train.
The defense is bottomed on two provisions of appellee's articles of incorporation and its by-laws, made a part of the certificate by reference, which read thus:
"This Association shall not be liable to a member or his beneficiary for * * * death benefits * * * when a member is participating * * * in the moving or transportation of gunpowder, dynamite, or other explosive substance or substances; * * * when the result of voluntary or unnecessary exposure to danger or to obvious risk of injury. * * *"
After both parties had adduced evidence, the court sustained appellee's motion for an instructed verdict, and that ruling is assigned as error.
The material facts are these: James Prinsen became a member of the association in 1915. At that time he was a salesman for the Western Powder Company, and so stated in his application. At the time of his death he was a director and assistant-secretary of that company. A few days before Prinsen's death the Tintic Powder and Supply Company gave an order to the Hercules Powder Company for 300,000 dynamite caps. These three companies all appear to have business offices in Utah. The Hercules Company asked the Western Company to fill the order. The request was received by Mr. Prinsen, and he was notified at the time that Mr. Begaman would come to Salt Lake City for the caps within the next day or so. The order was received and written up by Mr. Prinsen. Within a day or so and on February 3, 1931, Begaman came with an auto truck to receive the caps. They were in a magazine north of and outside of Salt Lake City. When Begaman came Prinsen took the key to the powder magazine and went with Begaman to deliver to him the caps. Delivery being made, he got on the truck and sat on the seat by Begaman for the purpose of riding back to Salt Lake City. This seems a reasonable inference. The truck was owned by the Tintic Company. As Begaman drove easterly on the highway he came to the railway crossing, drove upon it, and the rear end of the truck was struck by the engine of the passenger train and thrown from the track. There was a terrific explosion of the dynamite caps. Prinsen was sitting on the south side of the truck by the driver. Prinsen, Begaman, and the engineer on the railway engine were all killed, and the fireman on the engine was rendered unconscious, but later recovered. The accident occurred about 2:40 p. m. There were the usual railway warning signals at such crossing. After the collision the wreckage of the truck was north and east of the crossing in a depression below the rails approximately forty or fifty feet from the track. There are buildings about the crossing. The signs that appear on them in photographs indicate that some of them are a plant of Cudahy Packing Company. There were some obstructions of the view of the approaching train along the highway, but these were at intervals, and it is clear from the proof that Begaman and Prinsen had ample opportunity to have seen the approaching train had they looked in that direction before they reached the crossing. The fireman saw the track when the train was about 250 feet from the crossing. The train was then moving at a speed of about forty miles per hour, and he estimated the speed of the truck at fifteen or sixteen miles per hour. He also saw two men in the truck sitting in the covered cab side by side and that the truck was loaded with boxes. The brakes were applied to the railway engine. When it struck the truck it was running at approximately twenty-five miles per hour. There was no proof, and it seems improbable that any can ever be adduced, tending to show that Prinsen or Begaman saw or heard the train.
The question is whether the court erred in not submitting the case to the jury. The District Judge in ruling on the motion for directed verdict held that Prinsen "was both participating in moving and transporting these dynamite caps, and that under the circumstances of the case he voluntarily and unnecessarily exposed himself to a very obvious risk of injury." Each of the propositions thus announced constitutes a decision of fact, and we are constrained to hold that each presented an issue for determination by the jury. Participation in the moving or transportation of a thing requires action, effort, or direction. It is not an unreasonable inference that the sole purpose of Prinsen in getting on the truck with Begaman was to ride back to Salt Lake City, that he took no part in the operation of the truck, nor gave directions in that respect, nor made suggestions as to its speed, nor in any manner took part with Begaman in its operation. Of course, the dynamite caps while in the truck could not be moved or transported without moving the truck. We had occasion to consider the definition of the word "participate" in Head v. N. Y. Life Ins. Co. (C. C. A.) 43 F.(2d) 517. There is no proof as to what Prinsen did or did not do while riding with Begaman from the magazine to the railway crossing. That lies wholly in inference from the facts and circumstances of the case, and a reasonably prudent person might infer that he was wholly indifferent and passive as to Begaman's control of the truck and thereby the moving and transportation of the dynamite caps at the time of the accident. No occasion requiring Prinsen's assistance appears, unless he saw the train when the impulse of self preservation would have caused him to tell Begaman to stop. Nor does it appear to us a necessary and unavoidable inference that Prinsen in riding on the truck or in remaining there when Begaman drove it on the railway track voluntarily or unnecessarily exposed himself to danger or to an obvious risk of injury. We are not advised by any proof in this case as to the probability of explosions of dynamite caps while being transported in a truck over an ordinary country highway. Mr. Prinsen probably was informed on that subject, but we think ordinarily a court and jury are not. Nor is there proof that Mr. Prinsen knew the train was near just before the automobile was driven on the railway track. If he or Begaman knew that fact the...
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