TRAVELERS'PROTECTIVE ASS'N OF AMERICA v. Davis, 7025.

• Decision Date: 30 October 1933
• Docket Number: No. 7025.,7025.
• Citation: 67 F.2d 260
• Parties: TRAVELERS' PROTECTIVE ASS'N OF AMERICA v. DAVIS.
• Court: U.S. Court of Appeals — Fifth Circuit

67 F.2d 260 (1933)

TRAVELERS' PROTECTIVE ASS'N OF AMERICA v. DAVIS.^*

No. 7025.

Circuit Court of Appeals, Fifth Circuit.

October 30, 1933.

E. K. Wilcox and John B. Odum, both of Valdosta, Ga., and Maurice P. Phillips, of St. Louis, Mo., for appellant.

R. Lanier Anderson, Jr., and Robert L. Anderson, both of Macon, Ga., and Omer W. Franklin and H. Langdale, both of Valdosta, Ga., for appellee.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Grace Mae Davis upon her husband's certificate of membership in the Travelers' Protective Association recovered $10,000 for his accidental death. The material part of the certificate is: "The following benefits are paid to Class C members subject to the conditions, exceptions and limitations of the constitution of the Association and amendments thereto whenever a member in good standing shall, independently of all other causes, through external, violent and accidental means receive bodily injuries which shall solely and exclusively cause death or disability: * * * $10,000.00 if killed by accident." The constitution provides: "The Association shall not be liable to a member or his beneficiary for any disability benefits, special loss benefits or death benefits. * * * When caused wholly or in part by any bodily or mental infirmity or disease. * * * When resulting from voluntary or involuntary, conscious or unconscious inhalation of any gas, anesthetic or vapor. * * * Provided, however, that the said exception concerning voluntary or involuntary, conscious or unconscious inhalation of any gas, anesthetic or vapor shall not apply when such gas, anesthetic or vapor has been generated by accidental means and liberated by accidental means. * * * When resulting from medical, mechanical, dental, surgical or other treatment or manipulation, provided that the said exception concerning treatment and manipulation shall not apply to a surgical operation made necessary by and performed within six calendar months from the date of the original injury." The evidence was in no substantial conflict. The deceased three years before his death was operated upon for gall bladder trouble, and had a post-operative hernia which tended to become worse, and for which his physician had advised an operation. Deceased left home on a long automobile trip and returned after several days suffering greatly from his hernia, went to his physician, not complaining of any accident, and consented to an operation which two days later was undertaken. He was examined and thought to be in good condition for the operation, but at the end of it, while under an anesthetic, his heart suddenly stopped beating and he died. The medical opinion given is that he died from the anesthetic administered, and the dilation of his heart during the operation due to the strain on it of the anesthetic and the operation. Possible undetected fatty degeneration, or hardened arteries, or violence applied to the body, or physical strain were mentioned as other possible causes of dilation, but nothing wrong with his heart was discovered before the operation and the testimony is undisputed that the anesthetic was the immediate cause of death. The plaintiff testified that the abdomen of deceased was red and swollen when he returned home, though he complained to her of no accident. The physician said he saw no external sign of injury when he examined him that day. There was, however, circumstantial evidence from which the jury might have concluded that his automobile on the day previous had slid from the road, bending a fender...