Ogburn v. Travelers Insurance

WASTE, C. J.

The defendant appeals from a judgment entered in favor of plaintiff as administrator of the estate of Byron C. Ogburn, deceased, in an action brought upon a policy of accident insurance. The deceased purchased a “Travel Accident Ticket Policy” from the agent of the defendant insurance company at San Antonio, Texas. While in San Francisco he was killed in an accident occurring in the Hotel Flower, which hotel maintained an elevator service used by guests, visitors, employees, tradesmen and waiters. The evidence discloses that on the day of the accident the deceased, in company with a friend, summoned the elevator to the ground floor for the purpose of being conveyed to the fifth floor. In response to the summons, the elevator was brought to the ground floor by its operator. As the door of the elevator was opened, the deceased’s companion stepped into the car, which immediatedy started upward, without the operator having previously closed the

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door. Deceased, apparently following close upon the heels of his friend, stepped through the open door into the elevator shaft, and fell to the basement, receiving the injuries which resulted in his death.

The introductory clause or caption of the policy issued to the deceased by the defendant company states that it “Covers Accidents Only While a Passenger on Passenger Conveyances and While in or About Railroad Passenger Stations. Age 18 to 70.” In the body of the policy it is declared that “The Travelers Insurance Company hereby insures . . . against bodily injuries effected solely by external, violent and accidental means, and sustained while riding as a passenger on any public conveyance provided by a common carrier and such conveyance is being propelled on land or water by mechanical power ...” In the presentation of the appeal, both sides have devoted considerable portions of their briefs to the following two questions: Whether the introductory clause or caption of an insurance policy is to be read and construed with the provisions appearing in the body of the instrument? And, whether an elevator maintained by a public hotel for the convenience of those having occasion to use the same is a common carrier within the meaning of the particular policy here involved? We need consider only the first.

In the interpretation of a written instrument the primary object is to ascertain and carry out the intention of the parties thereto.