Sturmberg v. TRAVELERS PROTECTIVE ASS'N OF AMERICA

• Decision Date: 20 January 1936
• Docket Number: No. 7762.,7762.
• Citation: 80 F.2d 997
• Parties: STURMBERG v. TRAVELERS PROTECTIVE ASS'N OF AMERICA.
• Court: U.S. Court of Appeals — Fifth Circuit

80 F.2d 997 (1935)

STURMBERG v. TRAVELERS PROTECTIVE ASS'N OF AMERICA.

No. 7762.

Circuit Court of Appeals, Fifth Circuit.

December 28, 1935.

Rehearing Denied January 20, 1936.

John P. Pfeiffer, of San Antonio, Tex., for appellant.

Martin J. Arnold and Perry S. Robertson, both of San Antonio, Tex., for appellee.

Before FOSTER and SIBLEY, Circuit Judges, and DAWKINS, District Judge.

DAWKINS, District Judge.

Plaintiff sued in the state court of Texas, on a policy of accident insurance, claiming injuries which caused total disability, entitling him to recover the stipulated sum of $50 per week for 104 weeks, statutory penalties, and attorney's fees under the law of the state. The case was removed to the court below on the ground of diverse citizenship. After the evidence was all in, the court, on motion of the defendant, directed a verdict in its favor. It, therefore, becomes our duty to examine the record to see if there was substantial evidence from which a reasonable mind might have concluded the plaintiff received injuries in the manner alleged, and which, under the terms of the policy and the law applicable thereto, would have entitled him to a verdict.

The pertinent allegations of the petition are as follows:

"That on the 8th day of April, A. D., 1932, this plaintiff, while on the highway some ten or twelve miles out of Floresville, Wilson County, Texas, found it necessary to change the right rear casing on the light coupe automobile in which he was riding. After jacking up the rear axle and removing the deflated casing and removing the spare from the rack, the jack holding up said axle fell over and the car went down, resting on the right rear wheel without a casing. In rejacking up the car and while trying to place a piece of plank on top of the blocking up in order to raise said rear axle higher to permit the placing on the wheel the inflated casing, some part of the said automobile came in violent contact with plaintiff's neck at or about the base of the skull. Said contact caused immediate vomiting and violent cold perspiration on the part of the plaintiff for about thirty minutes.

"Said violence caused by said automobile hitting this plaintiff, as aforesaid, this plaintiff within a few days thereafter began to suffer from traumatic arthritis or traumatic rheumatism of the spine. That the trauma caused by said violence, as above set out, has involved the central nervous system of this plaintiff to such an extent that he has partial paralysis of the right arm and has lost the muscular control of various parts of his body and especially his right arm and left leg, and has produced neurosis accompanied by cold sweating, nervousness and mental incoordination to the extent that he is physically and mentally disabled to such an extent that he is entirely incapacitated and unable to perform any part, or substantial part, of his usual or regular business."

We also quote the relevant provisions of the constitution of the defendant association:

"Sec. 5. Whenever a Class A member of this Association in good standing shall through external, violent and accidental means receive bodily injuries which shall independently of all other causes immediately, continuously and wholly disable him from transacting any and every kind of business pertaining to his occupation as shown by the records of this Association, he shall, upon compliance with and subject to the other provisions, conditions and limitations of this Constitution, be paid for the loss of time occasioned thereby the sum of $25.00 per week, not exceeding one hundred and four consecutive weeks. * * *

"The foregoing provisions of this section shall apply to Class C members, save that Class C members, shall receive double the amount of benefits for Class A members." Art. 10, § 5.

"This Association shall not be liable to a member or his beneficiary for any disability benefits, special loss, or death benefits, when the disability, special loss, or death of a member occurs under any of the following conditions or circumstances; when inflicted by a member on himself while sane or insane; when there are no visible marks of injury upon the body (the body itself not being deemed such a mark in case of death.); * * * when caused wholly or in part by any bodily or mental infirmity or disease, * * * when the result of voluntary over-exertion (unless in a humane effort to save human life) * * *; when resulting wholly or in part from * * * paralysis, apoplexy, * * * cerebral, menigeal or spinal hemorrhage, * * * or any other disease or diseases." Art. 12, § 1.

Plaintiff, as a witness in his own behalf, testified in substance as follows:

He was sixty-four years old when the alleged accident happened and at the time was and had been for more than fifteen years a member in good standing of the defendant association; that he belonged to class C of certificate holders, who in case of total disability, as defined by the constitution and by-laws, was entitled to receive $50 per week for 104 weeks; that he had not worked since the day of his injuries on April 8, 1932; that on the latter date he was traveling on a sandy dirt road, in a Chevrolet Standard coupé, when the right rear wheel went flat; that he set his brakes, jacked the axle up, removed the deflated tire, and went to the rear to remove the spare for replacing on the car; that a slight jerk was required to remove the spare from its rack, which caused the axle to slip off the jack and the hub of the wheel then rested in the sand; that being unable to get the jack under it again, he "got some blocks and laid them close to the axle as a fulcrum and I used a piece of wood, seven or eight feet in length as a lever to raise the car. I tied the wheel that I had taken off to the end of the lever to assist in the raising of the car. As the car would raise I would push pieces of wood between the axle and blocking. In placing these pieces of wood I would put my left leg under the car and stoop down, and as I was about to place a piece I either lost my balance or the car slipped, something happened, and I had the sensation that I bumped my head and fell flat on the ground. My recollection, which did not come back to me until the following December, is that I received a bump back of my neck when my pry slipped and the car came down."

That after falling on the ground he became sick and started to vomit, sat on the running board with perspiration rolling off of him and drank most of a thermos jug of water; that this consumed about twenty or thirty minutes; that after feeling better, he did not try to jack the car up any further, but dug the sand out from under the wheel and slipped it on; that he was still dizzy and the "sun seemed to be in the North"; that he went on through Pleasanton and Jourdanton, home, but does not remember when he arrived there. The next day he got his mail at the post office, "but was still confused and got all mixed up and had entirely forgotten something had happened to me"; that his arm hurt him and he went to see a chiropractor and on the 15th and 16th of April went to see a doctor, who made an examination but did not treat him and who wanted to extract some spinal fluid;...