TRAVELERS'INS. CO. OF HARTFORD, CONN. v. Diner, 6542.

• Decision Date: 11 February 1935
• Docket Number: No. 6542.,6542.
• Citation: 75 F.2d 3
• Parties: TRAVELERS' INS. CO. OF HARTFORD, CONN., v. DINER.
• Court: U.S. Court of Appeals — Sixth Circuit

75 F.2d 3 (1935)

TRAVELERS' INS. CO. OF HARTFORD, CONN., v. DINER.

No. 6542.

Circuit Court of Appeals, Sixth Circuit.

February 11, 1935.

W. N. Snow, of Grand Rapids, Mich. (Knappen, Uhl, Bryant & Snow, of Grand Rapids, Mich., on the brief), for appellant.

Walter M. Nelson, of Cincinnati, Ohio (Dale Souter, of Grand Rapids, Mich., on the brief), for appellee.

Before MOORMAN, HICKS, and SIMONS, Circuit Judges.

HICKS, Circuit Judge.

Suit upon a policy of accident insurance, issued on behalf of Frank J. Diner, who died while it was in force. The policy carried a supplement covering injuries sustained while riding in or operating a private automobile. Appellant challenges the denial of a directed verdict in its behalf.

The policy insured Diner "against bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means * * *." In view of this provision, the question is, whether there was sufficient evidence to justify the submission of the case to the jury.

Diner was sixty-two years of age, five feet, seven inches tall, and weighed about two hundred and twenty pounds. He lived in Detroit and as manager of a manufacturers' association had an office there. In the last year of his life he developed a slight diabetic condition, which, upon the advice of a physician, was alleviated by corrective diet.

On July 24, 1932, in company with Mrs. Diner, he drove from Detroit in an automobile to the farm of his son-in-law near Hart, Mich., a distance of two hundred and forty-five miles. He remained there on vacation during the ensuing week and engaged in various activities. Unaided he built a boat-house, repaired a granary and some chicken pens, and constructed the approach to a barn out of heavy planking. He helped with various chores about the farm. During the entire week he was cheerful, ate heartily, slept well, and showed no indication of illness. On Thursday evening he attended a social function in the neighborhood where he remained until about midnight. On Sunday morning, July 31, about 9:30 he, with Mrs. Diner, started for Detroit. Upon reaching Muskegon and while driving about fifteen miles per hour, and turning from Marquette street into Getty avenue, the right lens of the colored glasses he was wearing dropped out. The sunlight blinded him, and he lost control of the car, which collided with the concrete base of a gasoline station. This base, three feet wide and six feet long, weighing about three hundred pounds, and imbedded in cinders and gravel, was displaced about three inches by the impact. The two pumps which it supported, each of which weighed about three hundred pounds, were tipped over and their connecting pipes broken. The bumper of the car was snapped off. Mrs. Diner was thrown upward in the car and her clothing torn. Diner was thrown against the steering wheel and then against the top of the car, and falling back into the seat, sat motionless and senseless for about five minutes. Mrs. Diner offered him water which he refused. He then got out of the car without speaking, stood nearby about ten minutes, walked around the car, and then re-entered it and sat down. During this period he was pale and nervous and perspired freely. In about an hour the owner of the station arrived, and after some conversation with him Diner gave him his card and drove away. Before he had driven a mile he was forced to stop and rest for nearly an hour. After other and frequent stops for rest he reached home about 9 p. m. He was restless during the night, ate very little breakfast, drove the car to a garage about 10 o'clock, then went to his office, and from there returned home about 2 or 3 o'clock. He talked very little, was dispirited, did nothing but sit around the house, and again spent a restless night. He conducted himself in the same general manner for the remainder of the week, but on Saturday, with his wife, drove the car again to the home of his son-in-law, where, after again stopping many times for rest, he arrived about 6 o'clock.

During the following week he did no work about the farm, was irritable and cross, lost appetite, spent sleepless nights, and complained of dizziness and headache. His appearance was that of one in pain. On Saturday of that week he complained that he could not see well, and failed to recognize a friend who was standing within a foot of him. On that afternoon he went with a fishing party to a lake but declined to go out in the boat and fished from the bank. While he was walking along the shore he fell but recovered himself, and after...