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Wright an accident insurance policy for $5,- control was that he might leave the car, then 000, insuring him "against disability or the policy covered the situation. death resulting directly and independently of The trial judge regarding, but wrongfulall other causes from bodily injuries effected ly, as we shall see, the case as one of double solely through external, violent, and acciden- indemnity, sought to find a middle course by tal means." The policy continued in force writing into the policy the motive or absence until the death of the insured under circum- of motive of the deceased in leaving the car, stances hereafter noted. Suit was brought on and held that, if the deceased was thrown such policy and recovery of the full amount from the car, then the injury was inflicted had in the court below. The company con- while he was "riding in" the car; but, if he ceded its liability therefor, so that with that jumped from the car to save himself, the inpolicy we are not concerned.

jury was inflicted when he was not "riding in" On October 31, 1910, the company in con- the car, and so instruct the jury. But the polsideration of the payment to it of a premium icy nowhere makes such a distinction, the parof $10 issued to the insured an additional ties did not so contract, and to write motive policy-in form an automobile indorsement or absence of motive in leaving the car as one or rider on his foregoing policy-for indem- of the terms of the contract is to make a connity against "bodily injuries through exter- tract for the parties which they neither made nal, violent, and accidental means, while he nor wrote. This contract dealt with facts, is riding in, operating, or caring for a private not motives. It specified a situation in which automobile," and for “an additional princi- alone the company was to be liable. It did pal sum of $5,000.” On this latter policy the not insure when another situation arose, no beneficiary declared in the same suit. A ver- matter how that change of situation came dict and judgment in favor of the insurance about, and if the deceased was not injured company was entered for plaintiff on the “while he is riding in" a car, then the policy, first policy and for defendant on the second. measured as it must be by its mere literalism, Thereupon the plaintiff sued out this writ of simply does not cover an injury suffered

when he is not riding in the car, no matter The facts in the case, which are undis- what the circumstances or motive that got puted, are these : On September 27, 1921, him out of the car; for it makes no difference the insured was riding down a mountain road to our mind, so far as the literalism of the of steep grade in the private automobile of a

contract is concerned, whether the change of friend, who was driving. In the descent the situation was a physical stress caused by the driver, in attempting to change gear, for the uncontrolled car throwing him out, or a mentime being lost control of the car. When he tal stress constrained by the instinct of selffinally got it under control, he found the de preservation which resulted in his jumping ceased had disappeared, and, going back, out. found him lying face down on the road. He [1] Taking, then, the removal most favorable was unconscious and so fatally injured that to the company, namely, a leap by the indeath ensued the next day. No one saw how sured from the car to save himself we have or when he left the car, and, other than the the question whether such a case is covered fact that when the car got out of control he by this policy. The facts are undisputed, was in it, and when control was regained he and it is therefore the duty of the court to was not in it, everything was speculative. construe the policy and decide whether it apDid the policy cover such an accident? That plies. Assuming, then, that the car got bethe physical injury suffered by the deceased yond control on this steep road, that the dewas inflicted when he struck the road, and ceased was then sitting in it, and before connot when he was in the car, is clear, and trol was regained leaped from the car to save therefore, adhering to the literalism of its himself as the jury found he did, is such a policy the company contends the deceased, situation covered by the policy? when injured, was not “riding in the car," [2] Addressing ourselves to the court's duty and therefore, looking at the injury and ac- to construe the policy, we note that this is cident as occurring at the instant his head not a case of double indemnity on a single struck the roadway the situation was one not premium, but one of double or additional covered by the policy. On the other hand, it premium for an additional original indemis contended that the real accident was los nity; for the indemnity in this case is, as the ing control of the car, and if the deceased policy recites, for "an additional original was then riding in the car, and one of the principal sum of $5,000,” and for this parnatural and be expected results of that lost ticular indemnity an additional premium was


10 F.(20) 281 paid. We therefore do not have a case of but the company as well from loss? For, double indemnity, where the insured seeks to indeed, to ignore, to fail to provide for, to cover an exceptional situation not covered by rigidly constrain the car rider to supine inits general terms, and where, .referring to action under such circumstances, and to say canons of policy construction, “the court,” his policy so intended, is to fly in the face as said in Depue v. Travelers' [Ins. Co. (C. of common experience. C.)] 166 F. 183, “recognized that the situa- Recognizing the usual incidents in collition had changed.” On the contrary, we have sions and accidents, the law has brought into the usual situation of an original undertak- its legal nomenclature the phrase "in exing involving an individual indemnity based tremis," and held that, where danger is faced on an individual premium, and therefore gov- in an accident, unwise action shall not prej. erned by the construction canon that, avhen udice a man, a vehicle, or a vessel. If one the words of a policy are, without violence, were insured while "riding in a motorboat,” susceptible of two interpretations, that which and circumstances arose where the steering will sustain the indemnity it was the object gear ceased to control and the vessel was of the assured to obtain should be preferred. headed for a dam, rapid, or other vessel, Insurance Co. v. Boon, 95 U. S. 128, 24 L. and a frightened passenger jumped out to Ed. 395.

save himself, and thereafter succumbed and Now, what was the object of the insur

was drowned, while not riding in the motored when he contracted for indemnity? There boat, a reasonable man might contend that can be no doubt it was for his protection under such circumstances the passenger was while riding in an automobile-protection covered by such policy, although actual death against what? The answer is manifest:

came from drowning. In the present case the Against the dangers to which one riding in real accident was not when Wright's head an automobile is subjected. Collision, over

struck the road, but when car control was turning of machine, the machine leaving the lost. Such lost car control was the critical road, etc., are naturally anticipated; but in accident time, and the dominating factor the same category, and one of the grave dan- which subjected the riding passenger to presgers, especially in such a hilly and mountain- ent peril and later death. ous region as Pennsylvania, where, as ap- [3] That constraining, existing accident pears by indorsement, this policy became effective, is loss of car control. But in loss of might result in different, and to be expected,

consequences; but in any event the accident control on steep grades one of the most common happenings is the fright, and indeed of lost car control was the proximate cause

of the rider's death, whether the swerving of hysteria, of a helpless passenger, which, coupled with the instinct of self-preservation, the car threw him out physically, or the nerleads to his or her jumping from the car.

vous strain caused him to leap in fright, hysHaving, then, in view, as these contract- teria, or in answer to the instinct of self-presing parties had, the dangers incident to rid- ervation. What followed was an injury more

or less commonly incident to such lost car ing in an automobile, and among them loss of car control on steep grades, is it possible control. We cannot bring ourselves to the to believe they shut out from consideration, belief that the parties to this policy meant and therefore from their contract as a com

that this usual result of loss of car control mon incident and consequence of that dan

was not to be covered by this policy, for, if it ger, the panic, hysteria, and self-preservation was, no one would care to pay a premium for instinct naturally and reasonably to be ex- automobile protection. To us it is more reapected in such a situation? Were these fac- sonable to believe that, assuming the insured tors, common to the conduct of those sudden- desired protection “while riding in” a car, and ly confronted by danger, ignored, and their a fair-minded insurance company meant to usual dangerous consequences not insured sell and give him such protection, that the against? Was it contemplated that at such common contracting purpose of the two time the helpless passenger would and should would be that the insured was to be protectsit supine, and run the risk of the machine ed from the time he started riding at a jourcolliding with other machines, with its being ney's beginning, and continued until he ceasoverturned, or with its leaving the road, in its ed riding at its end, and that the words uncontrolled descent? Was it contemplated “while riding in” the car referred to the inthe passenger, confronted by danger, panic- tervening riding time, and if, during such stricken by fear, must do nothing in order time, injury was suffered from an accident to have the benefit of his indemnity, when by which might reasonably be expected to hapleaping he might not only save his own life, pen to one so "riding in” a car, that the

pra, said:

words "while riding in” were meant to cover United States, in Insurance Co. v. Boon, suand did cover a situation such as we now

"In (Lund) v. [Tyngsboro], have.

where it appeared that a traveler [4] Automobile risks, automobile dangers, had been injured by leaping from his carautomobile occupants' conduct, were not new riage, exercising ordinary care and prudsubjects of insurance study when this policy ence, in consequence of a near approach was executed. Indeed, an insurance compa- to a defect in a highway, the town was held ny's knowledge of the subject, its wide ex- liable, though the carriage did not come to perience with accidents and human conduct the defect. The defect was regarded as the at such times, its commercial instincts and actual, the dominating, cause. And in this its desire to get business, would assure it court similar doctrine has been asserted." that, if it wrote into its policy or said to an inquiring customer, “This policy does not

WOLLEY, Circuit Judge (dissenting). cover the case of leaping from a car when car I am constrained to dissent from the judgcontrol is lost," no one would pay an extra ment of the court for reasons which I shall premium for an indemnity that so failed to state very briefly. indemnify. If this company did not intend The action is not in tort; it is on a conthat one who jumped from a machine was tract. The contract is one of insurance. not to be protected, it could have made that Like all contracts it should be construed as unambiguous in a few words. It considered the parties wrote it. It provides in terms the matter of exceptions, for it inserted four. for indemnity to the insured in the event of If by its omission to do so it has couched the his sustaining “bodily injuries through exterpolicy in such terms that reasonable men nal, violent and accidental means, while he could reasonably contend, it applied to and is riding in • a private automobile." covered a situation such as is now before us, The trial court submitted to the jury an issue we are justified under the settled rule of con- of fact, namely; whether the insured susstruction in resolving that ambiguity against tained his injuries by being thrown from the the company and giving the policy such con- car or by voluntarily jumping out, and, construction. To do otherwise would be to de- struing the contract as it reads, instructed · prive one riding in a car of protection from them that if they should find the latter fact one of the grave dangers incident thereto. their verdict must be for the defendant. The

So holding, we regard the case as one re- evidence was meager, a doubtful emergency, quiring the court itself to construe and ap- and the discovery of the insured's body about ply the policy, and in the light of such con- three hundred feet back from the place where struction to hold that, if the case is one where the car was stopped. The verdict for the decontrol of a car' was lost, and that while lost fendant was a finding that the insured jumpan occupant suffered injury, the indemnity ed. On this finding I cannot see how his inapplied, whether he was thrown from the car juries were sustained “through external, vioby physical force, or, exercising ordinary lent and/or accidental means while he (was) care and prudence, he leaped from the car riding in” a car—the only three risks in a under mental force impelled by fright or the restricted situation insured against. Nothinstinct of self-preservation. We therefore ing of an external, violent or accidental nareverse the case, and remand it to the court ture happened to the insured until he left below for further proceedings, in accord with the car and assumed hazards which, as I read this opinion.

it, the policy does not cover. To embrace The conclusion we have reached is in ac- these hazards the contract of insurance must cord in principle with the authorities, for in be expanded by words which the parties did citing the case of Lund.v. Tyngsboro, 11 not use and be given a meaning which its Cush. (Mass.) 563, 59 Am. Dec. 159, as sup- words do not import. In refusing to do this, porting its opinion, the Supreme Court of the the learned District Judge, I think, was right.

10 F.(20) 285 BRIGGS v. HUNT, ELLIS & co, et al. tition to revise, and the appeal should be dis

missed. Petition of BRIGGS.

It appears that on August 10, 1925, an in(Circuit Court of Appeals, First Circuit.

voluntary petition in bankruptcy was filed February 2, 1926.)

against. William Hunt and L. Guy Dennett, Nos. 1927, 1937.

copartners carrying on a stock and broker

age business under the name of Hunt, Ellis 1. Bankruptcy 465-Appeal dismissed on same matter coming before court on petition & Co.; that on October 12, 1925, the alleged to revise.

bankrupts filed a petition for composition; Appeal from decree affirming order of ref- that on October 13, 1925, the case, with the eree in bankruptcy limiting time for filing recla- petition, requesting a meeting of creditors to mation claims will be dismissed, where matter

consider the offer of composition, was reis also before the court on petition to revise the same decree.

ferred to the referee in bankruptcy, “to take

such further proceedings therein as are au2. Bankruptcy w 446—Question of authority thorized by the act and as in his judgment

to enter order not considered on petition of one not adversely affected.

may be necessary or advisable for the preserQuestion of authority of referee in bank- vation of the estate or business of the alleged ruptcy before adjudication to limit time to file bankrupt, including the appointment of rereclamation petitions will not be considered; ceivers and appraisers, if necessary; to hear no right of petitioner, so far as disclosed, be- and determine all matters of fact relating to ing adversely affected, he not alleging that he was thereby prevented from filing any such said meeting and the proposed offer in competitions, and it appearing that he did file two position; to call such meetings, give such within the time limited.

notices, and make such further orders as

may Appeal from and Petition to Revise the petition and offer in composition are pending,

be necessary in the premises while said Proceedings of the District Court of the and to file his report under this order within United States for the District of Massa- 40 days hereafter”; that on October 17, chusetts; James Arnold Lowell, Judge.

1925, notice of a meeting to consider the In the matter of Hunt, Ellis & Co. and composition was duly given; that at said others, bankrupts. Walter S. Briggs appeals meeting held October 30, 1925, on motion of from a decree affirming an order of the ref- counsel for the alleged bankrupts, the referee eree, and files petition to revise the same de fixed December 30, 1925, as the time on or

Appeal and petition dismissed. before which claims in the nature of reclamaMark M. Horblit, of Boston, Mass. (Her- with a trust must be filed, which order was

tion or in the nature of impressing funds bert A. Baker and Horblit & Wasserman, later reduced to writing, notice of which all of Boston, Mass., on the brief), for ap

was mailed to all creditors on November 4, pellant and petitioner.

1925; that said order, after setting out the Daniel J. Lyne, of Boston, Mass., pro se.

name of the case and the motion of counsel, Lee M. Friedman, of Boston, Mass. the time when and the circumstances under (Friedman, Atherton, King & Turner, of which the oral order was made, reads as folBoston, Mass., on the brief), for other ap- lows: pellees and respondents.

"It is hereby ordered that the time on or Before BINGHAM, JOHNSON, and before which persons in interest herein may ANDERSON, Circuit Judges.

herein file any proceeding in reclamation,

in the nature of reclamation in the nature BINGHAM, Circuit Judge. No. 1927 is of impressing with trust securities or funds an appeal from a decree of the federal Dis- within the jurisdiction of this court, be and trict Court for Massachusetts affirming an the same hereby is fixed at December 30, order of a referee in bankruptcy limiting the 1925, being sixty (60) days from the date time for filing reclamation claims in a bank- hereof and it is further ordered that all perruptcy matter where, before adjudication, sons in interest failing on or before such composition had been offered and accepted by date to file any such claim be forever therea majority of the creditors, but as yet not after barred from filing the same herein.” approved by the court.

On November 11, 1925, the present peti[1] No. 1937 is a petition to revise in mat- tioner filed a petition to review said order by ters of law the same decree from which the the District Judge, and on November 23, appeal was taken in the previous case. 1925, the District Judge, having reviewed the

The matter is properly before us on pe- order, entered a decree dismissing the peti


tion and affirming the order of the referee. suspended by a pending composition, comNo order of adjudication has been entered, pel such adverse claimants to have their and the petition for composition is still pend- rights in the property determined in that ing before the referee. It further appears court or be thereafter barred. that the petitioner had, within the time fixed In No. 1927, Briggs v. Hunt, Ellis & Co., by said order, filed in said proceeding two or the appeal is dismissed without costs. No. more petitions for reclamation.

1937, Walter S. Briggs, Petitioner, the peti[2] The contention on the part of the peti- tion is dismissed, with costs to the respondtioner is that the court erred in affirming ents. the order of the referee on the ground that the latter had no authority to enter the order before adjudication.

HOROWITZ v. UNITED STATES. We are unable to see wherein the peti- (Circuit Court of Appeals. First Circuit. tioner, in view of the facts set out in his pe

February 2, 1926.) tition, is in any way aggrieved by the order.

No. 1896. The petition does not allege that he has been 1. Criminal law m605 – Dental of continu. prevented by the order from filing such rec- ance to procure witness held not error. lamation petitions as he deemed necessary, Where motion to suppress evidence was deand the answer to the petition discloses that nied before case was opened to jury, held that

trial court did not abuse its discretion in denyhe has "within the time fixed therefor by said

ing motion for continuance, after government order filed two petitions in the nature of rested, to procure witness to such matter, esreclamation, one on December 1, and the pecially in absence of offer of proof as to such other on December 30, 1925.

witness' testimony. We listened with interest to the extended 2. Criminal law m695/2-Denial of motion arguments of counsel and have spent much to suppress evidence held res judicata in sub

sequent trial before jury. time examining the cases called to our at

- District Court's denial of motion to suptention as bearing on the question argued, but as no right of the petitioner, so far as the press evidence after hearing was res judicata

on motion to strike in subsequent trial before facts disclose, is adversely affected by the jury, in absence of exception or assignment of order, we do not feel called upon to consid

3. Intoxicating liquors O236(6/2)-Evidence It may be doubtful whether the order held to warrant finding that accused unlaw.

fully possessed liquor found in his dwelling. properly construed operates further than to

Evidence held to warrant finding that acpreclude the filing of reclamation claims in

cused unlawfully possessed liquor found in his the bankruptcy proceeding after the date dwelling for commercial purposes, and that fixed by the order and to bar proceedings liquor was recently acquired. against the receiver individually in case he 4. Intoxicating liquors em 236 (6/2)-Evidepce turned over the estate to the bankrupts with held to warrant finding that accused unlawfulknowledge of outstanding reclamation claims ly possessed liquor found in his garage. which had not been seasonably filed, a com

Evidence held to warrant finding that ac

cused unlawfully possessed liquor found in his position having been confirmed. It would

garage. seem, however, that to this extent it would operate to preclude the filing of claims there- 5. Criminal law ww970(7)-Indictment and in

formation Om 121(1), 202(5)-Objection that after and as a bar, and that the District

indictment was indefinite held cured by verCourt had jurisdiction to enter such an order. dict, and could not be raised by motion in arIt will be sufficient to consider the question

rest of judgment; remedy being by asking whether the District Court, after a petition

bill of particulars. for composition has been filed, either before did not clearly state crime was cured by ver

Objection that indictment was indefinite and or after adjudication, has jurisdiction to dict, and could not be raised by motion in arenter an order barring reclamation claims rest of judginent; accused's remedy being by as against the debtor, not presented within asking for bill of particulars under National

Probibition Act, tit. 2, § 32 (Comp. St. Ann. the time limited, when a case presenting the Supp. 1923, § 10138428). question is before us. It is one thing to say that adverse claim

In Error to the District Court of the ants to property in the custody of the bank- United States for the District of Rhode ruptcy court may have their rights deter- Island; Arthur L. Brown, Judge. mined in that court, pending a composition, Abraham Horowitz was convicted of unand quite another to say that a bankrupt lawfully possessing intoxicating liquors, and debtor may, distribution of the estate being be brings error. Affirmed.


er it.

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