Railway Mail Ass'n v. Moseley

• Decision Date: 11 February 1914
• Docket Number: 2382.
• Citation: 211 F. 1
• Parties: RAILWAY MAIL ASS'N v. MOSELEY et al.
• Court: U.S. Court of Appeals — Sixth Circuit

211 F. 1

RAILWAY MAIL ASS'N v. MOSELEY et al.

No. 2382.

United States Court of Appeals, Sixth Circuit.

February 11, 1914

C. L Marsilliot and Walter C. Chandler, both of Memphis, Tenn for plaintiff in error.

Bell Terry & Bell, of Memphis, Tenn., for defendants in error.

Before KNAPPEN and DENISON, Circuit Judges, and HOLLISTER, District judge.

HOLLISTER District Judge.

This case involves the construction of a clause in a contract of insurance, issued by Railway Mail Association, plaintiff in error, to Emmett F. Moseley, a railway mail clerk at Memphis Tenn., by which it was agreed, among other things, that if the insured should receive bodily injuries, resulting in death from such injuries alone, within 180 days therefrom, during the continuance of the insurance, through external, violent, and accidental means, the defendant would pay his sisters, the defendants in error, $4,000, less such sum as might have been paid as weekly indemnity during the disability that caused his death.

The clause in question defines accidental death:

'Accidental death shall be construed to be either sudden, violent death from external causes not the result of the members' own vicious conduct, or death within one hundred and eighty days from injuries received by accident alone.' Moseley was a colored man of nearly white complexion. While the insurance was in force, he was shot and instantly killed at Memphis by Burns, a police officer of that city.

To the declaration in the suit below, brought by Moseley's sisters, the defendant interposed the plea:

'That said Emmett Moseley lost his life on or about the 22d day of August, 1911, as the direct and proximate result of his own vicious, violent, and intemperate conduct, in that late in the evening on said date said Emmett Moseley, while committing an unlawful trespass upon private property in the city of Memphis, Tenn., was ordered off of said property in a quiet and peaceable manner by a regularly constituted police officer of the city of Memphis, who was in charge of said property; that said Moseley, being then and there engaged in another violation of the law, to wit, in carrying a concealed, dangerous weapon, a pistol, without any reason or provocation, there and then committed a murderous assault upon said police officer by shooting said police officer with said pistol, whereupon said police officer in defense of his life shot and killed said Moseley, all in express violation of the terms and conditions of the policy sued on in this cause.'

The jury brought in a verdict for the plaintiffs in the full amount of the policy and interest, for which judgment was rendered with costs.

The errors assigned, including the refusal of the court to grant defendant's motion made at the close of all of the testimony to instruct the jury to find for the defendant, all relate to the construction put by the court, under the testimony in the case, upon the clause in the contract defining accidental death.

That Moseley's death was sudden and violent from a pistol shot at the hands of Burns was not disputed; and the questions were whether or not Moseley had been guilty of vicious conduct, and, if so, whether or not his death was the direct and proximate result thereof.

Burns testified:

'Well, at five minutes after 9, on August 22, 1911, I went through the Dan Shea Boiler Works, one of my customers or clients, to see that their property was all right, and we have an electric patrol system-- an electric box-- four boxes located at various points in the building; the first box is on the corner of Washington, and I went to that box first and pulled that box first and went from there to the second, and intended to pull it, and when I got almost to it, I saw a man standing up, and a woman laying down, and I flashed my lamp, and I told them to get out of there, and this woman got up and preceded me; I didn't intend to make any arrest, or anything, but intended to flash on the lamp to show them the way out; I told this man that I was an officer, and if I caught him around there any more, I would arrest him, and when we got out to the road-- that is, to the road going to the railroad that is between the office and the boiler shops, why, I heard a shot and felt something strike me in the back, although I felt no pain, although I could feel the blood running down, and this man I had seen a minute before, he ran around to Poplar street depot, and I grabbed my pistol-- as soon as I could get it-- I grabbed my pistol out and fired a shot at him, and missed him; in the meantime, he ran towards the depot, and I ran after him as quick as I could; I couldn't shoot for the number of railroad men there, and when I got down about on a line with the fourth electric light inside the shed, about midway between Exchange street and Poplar street, I saw this man step behind a coach, and he dropped there, and I ran around the corner of the coach, and he fired another shot at me, and I shot back, and then he ran possibly 50 feet, and I fired a second shot and killed him; in the meantime, I had fallen down between the second and third shots, and I got up again, and I saw he still held his pistol, and I staggered up to him, and took his pistol away from him, thinking that he might shoot back, and when I got there and took hold of the pistol, I saw he was dead; so I laid down there until the patrol wagon came and got me and carried me to the hospital.'

He also said that it was about 100 years from the boiler works to the south end of the shed, and where he was shot was about 100 feet further south than the north end of the boiler works. If this is true, it would make the distance from where he says he was shot to the place where some of the witnesses first located the two shots at the south end of the shed as much as 400 feet. This is an appreciable distance, even when men are running, and reflects upon the question as to where the first two shots were fired, as well as upon the quality of Burns' conduct. The jury may have found, and could find, from all the evidence in the case, that those shots were actually fired at the south end of the shed, and not at the boiler works at all.

The unfortunate woman referred to denies being present in the boiler works, though she was later arrested in the vicinity, but just how far away is not made clear; and she denies ever having had to do with negroes. Burns alone testifies to Moseley's presence in the boiler works, if, indeed, he was present. It is difficult, from the testimony, to lay with accuracy the scene of the killing, because of the lack of exact location of fixed objects referred to, and their distances from each other. But it may be gathered from the testimony and a map of the city of Memphis (itself lacking in notations of distances) that on the south of the railroad shed spoken of in the testimony, is Poplar street, and to the south of Poplar street the boiler works are located. How wide Poplar street is does not appear. Whether the shed covers the whole distance between Poplar street and the street at the north of the railroad station and the length of the shed do not appear. It may be gathered from the testimony and the briefs of counsel that the distance between the boiler works and the place where Moseley fell dead is about 600 feet; it may be more than that. There was a train of cars standing in the station, the most southerly of which, an express car, was probably midway of the shed.

Moseley lived with his brother and sisters, not far away from the station. How far does not appear. He left home to mail a letter at the station. One of the witnesses talked with him on the subject at the station within a very short time before he was killed. There is substantial agreement among the witnesses that the killing took place between 9 and 10 o'clock, probably not earlier than quarter past 9. There were electric lights in the station. The news was telephoned to Moseley's brother, who testified that Moseley had been away about 45 minutes. Moseley was 21 years of age, and had a good reputation for peacefulness.

The weight of the evidence fixes the firing of the initial two shots at the south end of the station. There was some evidence that the sound of footsteps preceded any shooting. It was substantially proved that Moseley and Burns, the former leading, were running rapidly northwardly in the station. It was established that Burns had a pistol in his hand. Some witnesses say Moseley had a pistol in his hand while running, and others that he did not. Moseley ran past the south end of the car and at the west of it, there being evidence tending to show that Burns was gaining upon him, and, at a distance of perhaps 15 or 20 steps, shot him; Moseley fell; but regained his feet quickly, at which time Burns was but a few feet from him, and ran back southwardly and around the south end of the car toward the east, 'circling around' the end of the car; Burns taking a wider circle, and, with an oath, saying, 'I am going to kill you,' shot again at Moseley, who fell dead, shot twice in the back.

There is evidence tending to show that Burns himself fell down, or lay down, shouting: 'You all seen him shoot me first,' and others say he said, 'He shot me first.'

There is evidence tending to show that at the corner of the car Moseley stopped and shot twice at Burns.

If Moseley lingered at the end of the car to shoot Burns, the length of time he lingered must have been very brief-- indeed scarcely appreciable. But it is quite possible, and from all the evidence the jury could have found, that the shooting of Burns occurred at that time and immediately before he killed Moseley. Two pistols were found in front of Burns. Burns was undoubtedly shot, and in the back, but whether...