
    MITCHELL et al. v. NEW YORK LIFE INS. CO.
    No. 5287.
    Circuit Court of Appeals, Seventh Circuit.
    Dec. 13, 1934.
    Rehearing’ Denied Jan. 17, 1935.
    
      The memorandum of Judge Barnes follows:
    This cause came before the court on a bill of complaint seeking removal of New York Life Insurance Company as trustee beneficiary under two certain trust agreements, issued in connection with two certain policies of life insurance, written on the life of one Ernest I. Mitchell, a resident of Chicago, who died on June 1, 1933, as a direct result of injuries sustained by falling down an elevator shaft located in the Carbide & Carbon building, at 230 North Michigan avenue, Chicago. The bill of complaint also joins New York Life,. Insurance Company in its individual capacity as insurer, and asks that the court construe certain identical double indemnity provisions contained in the two contracts of insurance and that the court enter a' decree which in substanpe and effect will order and direct the defendant insurance company, as insurer, to pay into the corpus of the trust the further sum of $36,-780, together with interest at 5 per cent, from June 23,1933, the date of demand; said sum being the total amount of the double indemnity provisions contained in said policies.
    The language of the double indemnity provisions in the policies is as follows: “Double the Face of .this Policy upon receipt of due .proof that death of the Insured was caused directly by accident while, traveling as a passenger on a street car, railway train, steamship licensed for, regular transportation of passengers, or other public conveyance operated by a common carrier, and that such death occurred within sixty days after such accident.” . .
    The accident, in question is described in the stipulation of the parties, upon which this cáse wás tried,..as follows:
    “11. Before and at the time of his death, Ernest I. Mitchell was president of Mitchell,. Faust, Dickson & Wieland, general advertising agents, tenants; of and in the Carbide &. Carbon Building, located at 230 North Michigan Avenue, Chicago, Illinois, with offices on the twenty-third floor of said building.
    “12. The Carbide & Carbon building was and is a modem office building, thirty-six stories in height. The ground floor is occupied by retail stores and a lobby. The upper floors are tenanted by hundreds of persons, firms and corporations engaged in professional and mercantile pursuits. The building long has been and is operated by Oxweld Acetylene Company, a corporation organized for and engaged in the business of manufacturing and selling machinery. Oxweld Acetylene Company occupies a portion of one of the upper floors. All other occupants of the building are its lessees, paying rent for the respective spaces used bv them.
    “The conveyance of tenants and of persons having dealings with tenants in their offices and places of business in said building above the main floor was and is accomplished by means of passenger elevators. By the terms of their.respective leases, it is provided that elevator service shall be furnished by the lessor daily from 8 o’clock A. M. until 6 o’clock P. M., Sundays and holidays excepted,' and the lease of Mitchell, Faust, Dickson & Wieland, Inc., also so provided. There were and are two banks of such elevators, operated by Oxweld Acetylene Company, in shafts opening by doors into the lobby of the main floor. The entrance into the building from North Michigan Avenue faces eastward, and, upon entering the building lobby, one bank of elevators, to the right, faces south,' and the other bank of elevators, to the left, faces north. The front of each elevator shaft, except when the elevator "car within the shaft is being loaded or unloaded, is ordinarily automatically closed by sliding metallic doors, opaque and withotit window, opening or grill. - '
    “13. On. June 1, 1933, elevator ear No. 1, being the.easterly passenger elevator in the south bank, was temporarily out. of order and had been taken out of service prior to 10 o’clock in the morning. A workman, not employed by Oxweld Acetylene Company, was engaged in making repairs upon the elevator ear.. There was, at his customary place of,.duty in the lobby of said building at the timé said repairs were in progress, an employee of the Oxweld Acetylene Company in the capacity of a starter for the elevator cars. The duties of said elevator starter consisted principally of supervising the arrival and departure of cars, and, m general, regulating the transportation of passengers to and from various^ floors in the bund-ing. It was not in the line of duty of said starter to engage in making repairs on the elevator cars. Said elevator starter, at the request of the workman, in order to assist said workman in making repairs to the elevator car, stepped into elevator No. 1 and drove the same up from the level of the mam floor until the bottom of the elevator was slightly higher than the top of the doors from the elevator shaft into the lobby. The starter for the cars was thus enclosed within elevator ear No. 1, and there was no other employee of Oxweld Acetylene Company m the lobby of tbe building. The workman then propped the automatic metallic doors wide open. Thus, the opening from the lobby into the shaft of elevator car No. 1 was standing open, but the elevator car itself was so high above said opening that it was not vis-ihle to any person being m the lobby of the building. Said workman then screwed an electric light bulb into a socket permanently fastened to the underside of the floor of the elevator ear and lit the same, so that a light was shining in said shaft from a height and very much like .the usual electric light in the ceiling of the car.
    “14. While said repairs were being made under above conditions, and shortly after 10 o’clock A. M., Ernest I. Mitchell arrived at the building, intending to go to his office on the twenty-third floor by means of an elevator. He walked into the lobby, turned to his left, meaning to enter elevator car No. 1, and, instead, stepped into the shaft of elevator No. 1, and fell down the same to the floor of the shaft, a distance of approximately twenty-five feet. By means of such fall, he sustained bodily injuries as a result of which he came to his death on said day. The death of Ernest I. Mitchell was caused directly by said accident.”
    Two principal questions are brought to the eourt for decision: First, Was the insured, at the time of the accident, “traveling as a passenger”? and, second, Did the ae-cident occur while the insured was “traveling as a passenger on a * * * public-con-veyanee operated by a eommon earner”?
    The eourt is of the opinion, and holds, that the first question must be answered in the affirmative. The insured was at the time of the accident “traveling as a passenger.” London Guarantee & Accident Co. v. Ladd (C. C. A.) 299 F. 562.
    The court is of the opinion, and holds, that the second question must he answered ^ the negative. The accident did not oecur while the insured was traveling as a pasgenger on a p.uhlic conveyance operated by a eommon carrier. The plaintiffs have called the court’s attention to a number of Illinois cases, including the following: Beidler v. Branshaw, 200 Ill. 425, 65 N. E. 1086; Hartford Deposit Co. v. Sollitt, 172 Ill. 222, 50 N. E. 178, 64 Am. St. Rep. 35; Springer v. Ford, 189 Ill. 430, 59 N. E. 953, 52 L. R. A. 930, 82 Am St. Rep. 464; Steiskal v. Marshall 1 Field & Co., 238 Ill. 92, 87 N. E. 117; Anderson Art Co. v. Greenburg, 118 Ill. App. 220; and Field v. French, 80 Ill. App. 78 — where it is said that persons 0perating elevators in buildings for the pur-p0Se 0£ carrying passengers from one story ^ ail0Bier are common carriers of persons, defendant points out, what is the fact, that ^ theg6 caseg tbe Illillois eourts wre stating a rule as to the degree of care 0f operators of passenger elevators, and were not considering tbe question as to whelher or not operators of elevators were common carriers. Southern Ry. Co. v. Taylor 57 App. D. C. 21, 16 F.(2d) 517, at page 524
    .A T“ c™ °* P^^ngers is one who undertakes for hire to carry all persons indifferently who may apply for passage, so jong gg there is room and there is no legal exe-use for refusal. 4 Euling Case Law, p. i000; Rathbun v. Ocean Accident & G. Corp) 299 Ill. 562, 566, 132 N. E. 754, 19 A. L. B. 140.
    In 9 Ruling Case Law, pp. 1236, 1237, it is said: “Whether the proprietor of a passenger elevator is a common carrier in the management hereof is a question which has occasioned considerable difficulty, and the authrities are not in agreement. * * question is squarely presented, and 14 “ f!^4 to eonffae a statatf referring to tbe duties *or liabilities of ‘common carriers,’ it is held that such expresgjon does not refer to the proprietors of elovators” — citing Seaver v. Bradley, 179 Mass 329, 60 N. E. 795, 88 Am. St. Rep. 384, opinion by Chief Justice Holmes,
    In Bigby v. U. S. (C. C ) 103 F. 597 598; it was held. «The United States was not a common carrier in the operation of such elevator, for ‘no one can be considered as a common carrier unless he has in some way held himself out to the public as a carrier in 'such manner, as to render him liable to an action if he should refuse to carry for any one who wished to employ him.’ Allen v. Sackrider, 37 N. Y. 341, 342.”
    In Ogburn v. Travelers’ Ins. Co. (Cal. App.) 269 P. 728, it was held that a hotel elevator was not a “conveyance provided by a common carrier” within the terms of an accident insurance policy.
    In Southern Ry. Co. v. Taylor, 57 App. D. C. 21, 16 F.(2d) 517, page 523, it was said: “A street car, for example, and an elevator, are both instrumentalities for the carrying of passengers, .and the duty of exercising the highest degree of care in their operation for .the safety of passengers is equally imposed.- It, however, by no means follows that, because a street car is a common carrier, an elevator is also a common carrier. ■ The distinction is clear. In the first instance, we are dealing with a public utility, operated for the accommodation of the public generally, required to give service to all who apply, bringing themselves within its lawful rules and regulations. In the latter instance, we are not dealing with a public utility, but with a private instrumentality, operated to carry such persons in and about the building as to whom the owner may see fit to extend the accommodation.”
    The court is further of the opinion that, since the general term “other public conveyance operated by a common carrier” follows enumerated particular conveyances, that is, “street ear, railway train, steamship licensed for. regular transportation of passengers,”' the general term includes,'under the doctrine of ejusdem generis, only conveyances of the same general kind as the particular-conveyances enumerated, and that a passenger elevator -would not ,be included in the general term of the policy. Pulom v. Jacob Dold Packing Co. (C. C.) 182 F. 356; O’Connor v. Great Lakes Pipe Line Co. (C. C. A.) 63 F.(2d) 523.
    Edmund S. Cummings, Joseph W. Cummings, and 'Hubert Van Hook, all of Chicago', 111., -for appellants.
    Homer H. Cooper and Wendell J. Brown, both of Chicago, 111., and Louis H. Coóke, of New York City,' for appellee.
    Before ALSCHULER, EVANS, and FITZHENRY, Circuit Judges.
   FITZHENRY, Circuit Judge.

Appellants prosecute this appeal .to reverse the decree of the District Court in favor of appellee. Upon the hearing in the. District Court, the facts were stipulated by the respective parties and were fully set forth in the memorandum of the District Court, and the law applicable thereto was fully and accurately considered and applied. No good purpose would be served by another discussion of the facts and the law. The memorandum of District Judge Barnes is therefore approved and adopted as and for the opinion of this court.

The decree is affirmed.  