Carswell v. Railway Mail Ass'n

• Decision Date: 21 October 1925
• Docket Number: No. 4593.,4593.
• Citation: 8 F.2d 612
• Parties: CARSWELL v. RAILWAY MAIL ASS'N.
• Court: U.S. Court of Appeals — Fifth Circuit

8 F.2d 612 (1925)

CARSWELL v. RAILWAY MAIL ASS'N.

No. 4593.

Circuit Court of Appeals, Fifth Circuit.

October 21, 1925.

E. K. Wilcox, of Valdosta, Ga. (Parker, Parker & Quarterman, of Waycross, Ga., and T. G. Connell, of Valdosta, Ga., on the brief), for plaintiff in error.

Leon A. Wilson and Larry E. Pedrick, both of Waycross, Ga. (Wilson, Bennett & Pedrick, of Waycross, Ga., on the brief), for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This was an action by the plaintiff in error, the beneficiary in a benefit certificate issued to her husband, which provided for the payment to her of a stated sum in the event of the death of her husband, resulting from bodily injury received during the continuance of the certificate through external, violent, and accidental means, if his death should result from such injury alone within 120 days. The petition contained allegations to the effect that the insured, during the continuance of the certificate, in cranking or undertaking to crank an automobile, was injured by the acute dilatation of his heart and the muscles thereof, such condition of dilatation being the direct and immediate result of external, violent and accidental means, and that from said result alone he died within 2 days from the time said injury was received. Those allegations were put in issue. At the conclusion of the evidence, the court ordered an involuntary nonsuit.

Evidence adduced tended to prove that the death of the insured was due to dilatation of his heart, which was caused by his cranking or attempting to crank an automobile. The circumstances of his attempting to crank the car were deposed to by eyewitnesses. That testimony was to the following effect: After the insured discovered that he could not start the car with the self-starter, because that appliance would not work, his son undertook, without success, to crank it. Thereupon the insured took hold of the crank, and kept hold of it while it was spinning, without starting the motor, until he let go, raised up, and took a long breath, as if he was exhausted. The running gear of the car was low, so that to crank it one had to lean over to catch the crank and spin it. The testimony of the plaintiff included the following: "In undertaking to crank the car and in spinning the crank he twisted his body; it was in the same way that automobiles are usually cranked." There was no evidence tending to prove that insured leaned or twisted...