Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-02-03
SHARE IN THE COSTS.
10Th noATs LIABLE For COL
Lrsrov IN NORFOLK HARBoR.
Death NOT Due TO ACCIDENT
Circuit Court of Appeals So HOLDS
In the seIdcn Insurance Case
other Opinions-Chief Justice Ex-
pccted Monday.


peals convened here yesterday. Circuit
Judges Goff and Simonton, and District
Judge Brawley were on the bench.
Chief-Justice Fuller. who was expected
to be present at the opening of the court
was absent, through indisposiiion. Dut
will probably be here next Monday to
sit in certain cases which were heard In
the lower court by Judge Golf or Judge
Simonton.
The following attorneys were admitted
to practice In this court: Nessrs. james
II. Merriman, Asheville, n. c.; A. Z.
Avery. Morganton, n. c.; N. Silva. Nor
canton, n. c.: L. a. Sandley. Asheviiie,
N. c.
AN ADMIRALTY CASE DECIDED.
An opinion was handed down by Judge
Simonton In the case OF Alfred +. Tbom'
receiver for the Atlantic and Danviiie
Railway Company. claimant OF steam
boat City of Chester, appellant. against
the Norfolk and Carolina Railroad COM
pany, appellee, which was argued NO
vember 10, 1896.
The case came up by appeal from the
District Court of the United states TOT
the Eastern District of Virginia, sitting
In admiralty. 1t is a case OF coilsion
occurring in the harbor OF NortoiK
between the Primers Point, steam
tug. of the Norfolk and Carolina Kan.
road Company, and the steamtug City OF
Chester. The collision took place at
A. NJ. on a clear and bright day.
The City of Chester had In tow on
her port side a large barge loaded with
railroad cars, which projected forty leel
beyond her bow. She was proceeding
south up the harbor. The Primers POINT
without any tow, had left Irusen
Wharf, on the Portsmouth side OF the
harbor. and was making across the
course of the City of Chester Tor the
wharf of the Norfolk and Carolina ran
road. on the Norfolk side of the harbor'
at the same time the steamtug Martini
Helen was proceeding north down the
harbor. with two brgs in tow astern,
on a hawser the tow being in all 400 feet
long. The Primers Point had gone into
the stream, and when she was abreast
of the ferry slip on the Norfolk side OF
the harboi she Strengthened out ana
made for the shore The Martha Helen
blew her whistle twice TO let the CITY OF
Chester know that she was on the STAR
board tack. This signal was noticed ana
answered by the City of Chester. Shortly
afterwards the Primers Point blew her
whistle once, TO show that she was hold
ing her course. The signal was not
noticed by the City of Chester, as those
on board did not think 1t was Intended
for them. The signal was repeated ana
again ignored. One of the barges at
tached to the City of Chester came into
collision with the Primers Point.
Judge Hughes ruled that the Primers
Point had right of way. The Court or
Appeals reversed this decision. Inc
opinion sets forth that the City of Ches-
ter was greatly hampered In her move
ments by her lengthy tow.
The opinion holds that the fault was
mutual. and that the damages should be
divided.
NOT DUE TO ACCIDENT.
The decision of Judge Hughes, rem
dered in the case of Travellers Insurance
Company VS.. Mary Selden. was reversed
by the appellate court. The case was
argued November 18th, and the opinion
was handed down by Judge Brawley.
The policy OF insurance on which the
action was based is called an accident
policy" and covenants to pay a stipu-
lated indemnity to Richard c. Selden for
loss of time resulting from bodily in
juries effected during the term of insu-
rance. 1t also contained covenant TO
pay 5000 to his wife in case of death
from injuries. The policy was issued
March o. 1925.
on April 18th the deceased, a farmer,
residing on his plantation, while en-
gagged in handling a colt, complained OF
a sudden pain over the eye. He soon
lost the use of his legs, and was car
ried to his bed, and died a few days af-
forwards. The physician certified the
cause of the death as apoplexy, and he
defined apoplexy as the rupture of
blood-vessel. The rupture was said to
be due to overexertion while operating
upon the colt The decision of the
lower court in favor of Mary Nj. Sell
den, wife Of the deceased. Is reversed.
The opinion states that there was not
only no evidence that the death was
caused by external, violent, and acct
dental means. but conclusive evidence to
the contrary In an chronological
sense, anything that happens may be
said to be an accident, but in the sense
in which the word is used In the policy,
It is to be taken as meaning IAN event
which proceeds from an unknown cause,
or as an unusual effect of known
cause; and, therefore, unexpected
something casual and fortuitous To
entitle the plaintiff below to recover.
the burden of proof was upon her not
only to show that the deceased came
TO his death through external, violent,
and accidental means alone" but also
TO show that the death was not due, in
whole or i'm part, directly or indirectly.
to disease or bodily infrmity. II during
the operation upon the colt, while run
ming TO the fire for the hot-iron, the
deceased had stumbled or fell, that
might have been considered an accident.
but there was nothing of the kind. AT
most IL might be contended that the
exertions and activities of that morn
ing tended to bring into activity a then
existing. but dormant, disorder put
voluntary overexertion and disease and
bodily infirmity are in express words not
insured against"
OTHER CASES DECIDED.
No. $50. Robert NJ Spedden and Harvey
f, Burch. trading as Spedden & Burcn,
appellants, VS.. George Koenig and Memo
las r. Ford. part owners of steamtug
May Russell, appellees. Appeal from
District Court of Maryland, at Baltimore.
opinion by Judge Brawley; A a,ni,neu, Of
barge Glide appellant, VS.. William ~
Grafflin, administrator OF George w.
GrafIiin' deceased, appellee. Appeal from
the District Court OF Maryland, az bai'i-
more. Opinion by Judge Gof. Affirmed
No. 1872 r. G. Thomasson. appellant. vs.
Charles w. Bumpass and w. NJ. McCand-
lish. trading, &c, appellees. Appeal from
c,ircuit Court Eastern District of Nir-
ginia. at Richmond. Opinion by Judge
Morris Affirmed
No. is4. Henry c. King, appellant, VS.
Alexander McClintock ct al, appellees
Appeal from Circuit Court of West Nir-
GINA, at Parkersburg. Opinion by Judge
Simonton Affirmed
No. 1856 w. l. Carper. Sheriff, &c, adj
minstrator Edward Newsom, deceased.
niaintiff I'm error. VS.. Il. j. Kimball and
Henry Fink receivers Norfolk and West
ern Railroad Company, defendants IN
error. In error TO the Circuit Court OF
Western District of Virginia. at Abingdon
Opinion by Judge Goff. Affirmed.