Benno P. Ludwig, as Administrator of the Estate of Dean E. Cane, Deceased v. Massachusetts Mutual Life Insurance Company , 524 F.2d 376 ( 1975 )

PELL, Circuit Judge

(dissenting).

Dean Cane contracted and paid for insurance coverage in the event his death occurred while he “was a passenger in or upon a public conveyance then being operated by a common carrier to transport passengers.” (Emphasis added). While upon railroad premises, Cane crossed tracks to get to a platform where he could board his commuter train which had not yet arrived. While moving across the tracks he was struck and killed not by the train he eventually intended to board but by a freight train.

Upon these simple and undisputed facts in this diversity case, I cannot conceive that the courts of Michigan would hold that Cane had the coverage in issue. I therefore respectfully dissent.

I agree with the majority opinion that the law of Michigan controls in the present case but disagree with that opinion insofar as it expresses that the law of that state requires the tortured construction of plain words at which the majority have arrived. A careful reading of Quinn v. New York Life Ins. Co., 224 Mich. 641, 195 N.W. 427 (1923), and Rice v. Michigan Ry. Co., 208 Mich. 123, 175 N.W. 454 (1908), shows that the holding in each of these cases fails to support a holding of coverage in the present case. The crucial words in Quinn were “while traveling as a passenger on a street car.” (Emphasis added.) In that ease, the decedent had been riding on a street car and was in the process of dismounting. The court made it clear that, if the dismounting had been completed, there would have been no coverage:

“The question, therefore, is whether Mr. Quinn had safely alighted on the pavement at the moment he was struck by the taxicab. If he had, he was a traveler upon the highway, and no longer a passenger. If he were in the act of alighting, or had not safely alighted, from the car when he was struck by the automobile, he was a passenger within the meaning of this rule.” 195 N.W. at 429.

The Michigan court then reviewed the testimony and concluded:

“We are inclined to the opinion that the testimony of these two witnesses would justify an inference by the jury that Quinn was struck while in the act of alighting, and before he had safely alighted onto the pavement.” Id. at 429.

Upon this basis, the judgment of the trial court holding that there was coverage under the particular policy was affirmed. The Quinn case thus stands for nothing more than that a person is still a passenger “traveling on a street car” even though the vehicle itself was not moving, or traveling, along its tracks. He was “on” the conveyance physically and actually. The court did quote generally from 4 Ruling Case Law 1407 with regard to the duty owed by common carriers to its passengers with regard to safety where the carrier has exclusive control of its tracks and stations.

The duty of care owed by a common carrier to its passengers, actual or prospective, would seem to have little bearing on the construction of an insurance contract relating to a passenger “in or upon a public conveyance,” yet the law concerning the common carrier’s general duty of care owed to the traveling public was all that was involved in Rice. That was a negligence case against a common carrier and concerned a plaintiff injured while on the carrier’s station platform.

“He knew that a through car on defendant’s line would pass there about that hour, and that it would stop for passengers on being signaled. It is his claim that as the car approached the crossing from the south, and when about 35 rods distant, he signaled it to stop by waving his arm; that the car did not stop, but passed by at a speed of from 50 to 60 miles per hour; that, expecting it to slacken and stop, he stood near the edge of the platform and was caught in some way by the suction of air, thrown against the building and then the car, and badly injured.” 175 N.W. at 455.

In Rice, while the plaintiff had not boarded the moving car he obviously was injured according to the jury’s verdict by the negligent operation of the vehicle on which he was an intended passenger. Of course, in the case before us, the vehicle which the decedent intended to board had not arrived at the station yet, indeed as far as the record shows was no place within sight. That, however, insofar as the duty of care owed by a carrier to both passengers and intended passengers, as will be discussed hereinafter, is immaterial.

One issue as stated by the Michigan court was whether “the plaintiff [was] constructively a passenger and did the defendant owe him á duty as such? ” Id. at 458. (Emphasis added.) The court in concluding that the relationship of a passenger was established under the law pertaining to carriers then quoted from 6 Cyc. 536. [6 Encyclopedia of Law and Procedure] The quotation from Rice in the majority opinion is not of the words of the Michigan Supreme Court but rather is a part of that court’s quotation from Cyc. This is not, as the majority opinion suggests, the court’s answering “for the first time” when a person in the position of Rice is constructively a passenger insofar as a duty is owed to him by his intended carrier. The carrier law quoted from Cyc. is in a volume published in 1903, 16 years before the Rice opinion. It does not purport to state law applicable to carriers which is peculiar to Michigan but instead deals with law of general application. This law pertaining to carriers was not new in 1919 and indeed is still the law. Thus, in the second successor work to Cyc., Corpus Juris Secundum, it is stated:

“A person who, with the bona fide intention of becoming a passenger and with the express or implied assent of the carrier, enters on the carrier’s premises, at a proper place, in a proper manner, and at a proper time, ordinarily, has the status of a passenger even before entering the carrier’s vehicle.” 13 C.J.S. Carriers § 556 at 1061 et seq.

Among other cases cited in the cumulative pocket part to that volume is Ketchum v. Denver & Rio Grande Western R. Co., 175 F.2d 69 (10th Cir. 1949), which states the law pertaining to carriers, not as the law of a particular state, but as general law:

“The relation of carrier and passenger arises, and the duty of the carrier to the passenger attaches, when the latter enters the station premises for the purpose of boarding a train of the carrier. Such relationship precedes the actual boarding of the train and comes into being when a person, with the consent of the carrier, express or implied, enters the appropriate premises of the Railroad Company with the bona fide intent to avail himself of the transportation facilities which the carrier offers.” (Footnote omitted.) 175 F.2d at 71.

Thus, if the law pertaining to what creates the relationship of passenger, insofar as a carrier is concerned, is to be carried over to construing an insurance contract, it is not necessary to look to the Michigan law for the law appears to be the same in practically all jurisdictions with regard to the carrier-passenger relationship. I fail, however, to discern why law, and it would appear to be salutary law, which has developed as a somewhat sui generis area of the law, would be “supposed” to have been carried over into contract law so as to distort the clear and explicit words that the passenger to be covered must be “in or upon” the conveyance.

A person who is not even in the process of “safely getting on a public conveyance” can by no conceivable stretch of the imagination be said to be “a passenger in or upon a public conveyance then being operated by a common carrier to transport passengers for hire.” That is all that Cane paid for in the way of coverage and this court should not rewrite the contract. Even if we were to assume arguendo that the carrier law would carry over and give Cane the status of a passenger, he was not “in or upon a public conveyance then being operated by a common carrier.” (Emphasis added.)

The words “in or upon,” as used in an accident policy, should consistently with general principles applicable to insurance policies be given a broad and liberal construction consistent with the context of the whole clause in which they appear but where there is no ambiguity, the language must be considered in its plain and easily understood sense. 10 Couch on Insurance 2d § 41:289 at 282 (1962). The Couch text (see also §§ 41:254, 255, 261, and 262) indicates that the terms are given their ordinary meaning in connection not only with automobiles but with other conveyances; however, the cases in the insurance field where “in or upon” or equivalent expressions have been used all involve some contact with the conveyance upon which passage is contemplated. Thus, cases have involved one riding in places other than those customarily devoted to passengers, such as the platform of a passenger car or its steps, or in the case of an automobile, the running board. Even the cases where there has been some physical contact with the intended conveyance have gone both ways. Here, of course, there was no relationship whatsoever with being “in or upon” the intended conveyance. The result here should be based upon the plain and easily understood sense of the words used.

In sum, even if Cane could be considered in law as a “passenger,” he was not at the time of his accidental death “in or upon a public conveyance then being operated by a common carrier to transport passengers.”