Countee v. United States

• Decision Date: 21 May 1940
• Docket Number: No. 7129.,7129.
• Parties: COUNTEE v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

112 F.2d 447 (1940)

COUNTEE v. UNITED STATES.

No. 7129.

Circuit Court of Appeals, Seventh Circuit.

May 21, 1940.

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 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, plus a judicial recognition that the term permanent is descriptive of the nature of the disability rather than a measure of the duration of the disability. It is an accepted fact that even expert judgment is not infallible on the question of permanent disability. Also, even the term total is used in a relative sense and not as an absolute statement of the physical condition of the disabled person. On the other hand, there must be a finding of fact that the disabled person's present physical ailment constitutes permanent and total disability in order to justify a judgment in favor of the disabled person. In our opinion a finding in favor of total and permanent disability and judgment thereon is a final adjudication, as between the parties, that the disabled person's present physical condition constitutes total and permanent disability; and as between the parties that is res adjudicata. It is not an adjudication that the disabled person's physical condition at all times in the future will constitute total and permanent disability. In the cases involving the question of total and permanent disability under war risk insurance policies there are involved at least two essential fact issues, namely, (1) was the claimant suffering from the ailment or injury at the time, or during the period, that the claimant alleges that total and permanent disability existed; and (2) did such ailment so impair the mind or body of the claimant as to render it impossible, under the circumstances, for the claimant to follow continuously any gainful occupation and was the impairment or injury of such a nature that it was reasonably certain to continue throughout the life of the claimant. If the finding in respect to the foregoing issue is in favor of the claimant, the parties are bound by the adjudication; and assuming the continuing existence of the ailment or injury, the government is bound by the adjudication that such ailment or injury constitutes total and permanent disability. But since there is no adjudication that the ailment or injury will continue to exist throughout the life of the claimant, it follows that the government is not precluded from obtaining a subsequent adjudication that the ailment or injury no longer exists. Unless the right of the government to a reopening of the question of total and permanent disability is thus limited, it would follow that the government may retry the former suit de novo and show that the earlier finding was erroneous and should have been otherwise, not because of any change in the adjudicated facts, but merely because the second trier of the facts makes a different appraisal of them. Under defendant's theory, if plaintiff's ailment had been exactly the same as it was shown to be in the first suit, and if the evidence adduced to establish the ailment was the same in each suit on the question of whether such ailment constituted total and permanent disability, the jury, or trial judge, in the second action properly could review the correctness of the findings of fact in the first case.

In Edmunds v. United States¹ there was an action on a war risk insurance policy for disability benefits, and it was shown that plaintiff previously had recovered judgment for total...