112 F.2d 447 (7th Cir. 1940), 7129, Countee v. United States

Docket Nº:7129.
Citation:112 F.2d 447
Party Name:COUNTEE v. UNITED STATES.
Case Date:May 21, 1940
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 447

112 F.2d 447 (7th Cir. 1940)

COUNTEE

v.

UNITED STATES.

No. 7129.

United States Court of Appeals, Seventh Circuit.

May 21, 1940

Page 448

Edward H. S. Martin, of Chicago, Ill., for appellant.

William J. Campbell, U.S. Atty., of Chicago, Ill., and Julius C. Martin, Director, Bureau of War Risk Litigation, Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and Keith L. Seegmiller, Atty., Department of Justice, all of Washington, D.C., for appellee.

Before EVANS, MAJOR, and TREANOR, Circuit Judges.

TREANOR, Circuit Judge.

Plaintiff-appellant appeals from a judgment adverse to him in a suit to recover insurance benefits under a war risk term insurance policy.

Plaintiff had filed a previous suit under his war risk insurance policy in which he sought to establish that he had been totally and permanently disabled from and after November 23, 1918. He was awarded a judgment for total and permanent disability benefits from November 23, 1918, to the date of judgment, July 9, 1928. This judgment was satisfied and thereafter the United States Government continued to pay monthly disability benefits until July 23, 1933, when such payments were discontinued on the basis of a determination by the Administrator of Veterans' Affairs that plaintiff was not totally and permanently

Page 449

disabled. In the instant suit plaintiff seeks to recover for unpaid disability benefits from and after July 23, 1933.

Defendant did not deny that plaintiff was totally and permanently disabled to and including July 22, 1933. And it is not questioned that the period for which benefits were paid included August 22, 1933. The court instructed the jury as follows: 'The issue in this case is: Was Thomas Countee on August 22, 1933, totally and permanently disabled?'

The District Court ruled that the burden of proof on such issue was on defendant and defendant was accorded the right to open and close. Following the trial of such issue a verdict was returned in favor of defendant.

At the trial below there was no evidence introduced by defendant to show that plaintiff's condition had changed since, or differed from his condition at, the time of the previous judgment; and there was no evidence to show the nature of the ailment, disease or injury which constituted the total and permanent disability which had been adjudicated to exist in the former trial. There was evidence, however, that plaintiff was suffering from a functional heart ailment and that such ailment did not constitute total and permanent disability; but there was no showing that the previous adjudication was, or was not, based on the very same heart ailment, or whether such ailment existed to a greater or less degree at the time of the present trial.

This appeal involves a question of the effect to be given to a previous judicial determination of the existence of total and permanent disability. The majority of the decisions on the question hold that a judicial determination of the existence of total and permanent disability does not preclude a later litigation of the question of the existence of total and permanent disability, although the general rule is that a fact once established judicially cannot later be shown to be erroneous by a party to the proceeding. Different reasons have been given to justify this apparent departure from the general rule, but it would seem that a valid distinction is found in the nature of the right created by insurance contracts...

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