116 Ga. 264 | Ga. | 1902
The plaintiff in error issued to Austin, the deceased husband of the defendant in error, an accident-insurance policy which provided for the payment of certain indemnities in the event of accidental injuries to the insured, and of $5,000 to his widow in. case of his death as a result of such injuries. The policy contained a stipulation that “ if such injuries are sustained while riding as a passenger and being actually in or upon any railway passenger-car
1. From the foregoing it will be seen that the single question presented for determination by this case is whether or not, under the admitted facts, Austin was, at the time of receiving the injuries which caused his death, riding as a passenger upon a railway passenger-car, within the meaning of that clause of his policy of insurance which provided that he should receive double indemnity in the event that he should be accidentally injured or killed while so riding. This question may be subdivided into two branches: first, was he a passenger; and second, was the car in which he was riding a passenger-car ? “A passenger, in the legal sense of the term, is one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, as to the payment of fare, or that which is accepted as an equivalent therefor.” 5 Am. &Éng. Ene. L. (2d ed.) 486. “One may be both a passenger and an employee of a railroad company; an employee when passing over the road at a time when actually engaged in performing duties for the company, but a passenger while not so engaged but riding from one place to another, even though continuing all the while in a popular sense in the employ of the company.” Id. 516. It is not denied that Austin was an employee of the railroad company at the time he was killed; the question is, was he also a passenger ? The mere fact that he was not a part of the operating force or train crew engaged in the act of propelling the train does not, as seems to be contended by counsel for the defendant in error, invest him with that character. He was certainly “ passing over the road at a time when actually engaged in performing duties for the company.” His case can not be analogized to that of an official or an attorney who travels over the road for the purpose of reaching a point where duties are to be performed for the company, and who while so traveling is engaged in the performance of no duty whatever. ' While the pay-train was going from one station or point to another the paymaster was as much on duty as is the flagman of a passenger or freight train, whose sole duty it is to keep a lookout for other trains
This view is not in conflict with any of the cases cited in the brief of counsel for the defendant in error. A case upon which special stress seems to be laid is that of Berliner v. Insurance Co., 121 Cal. 458, where the Supreme Court of California held that the plaintiff was entitled to recover double indemnity under a clause in a policy of accident insurance almost identical with the one now under consideration, although the insured at the time of the accident, by invitation of an officer of the railroad company, was riding upon the engine of the train on which he was traveling; it being ruled that the fact of his riding upon the engine did not deprive him of his character of passenger. That case, however, can not properly be compared to the one now under consideration, because the relationship of the insured to the railroad company in the two cases was widely different. Berliner, so far as appears from the published report, was not employed by, or connected with the railroad. Apparently 'he had paid his fare before beginning his journey. The court in that case takes special occasion to say, on page 465, that if he had been riding on the train as an employee of
2. The evidence shows that the car in which Austin was riding at the time of the accident was a coach specially equipped for use by the officers and employees of the railroad company as a pay-car. It was not in any sense a passenger-car within the meaning of the contract of insurance, any more than a mail or baggage car could
The foregoing disposes of the case on its merits favorably to the contentions of the plaintiff in error. It follows that the charges of the court which were not in consonance with the principles here laid down were erroneous; that the trial judge should have directed, a verdict in favor of the insurance company as to the double indemnity ; and that the verdict returned for the plaintiff for the full amount sued for was contrary to law and the evidence, and should have been set aside on motion for new trial.
Judgment reversed.