Long v. United States

• Decision Date: 13 June 1932
• Docket Number: No. 3268.,3268.
• Citation: 59 F.2d 602
• Parties: LONG v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

59 F.2d 602 (1932)

LONG v. UNITED STATES.

No. 3268.

Circuit Court of Appeals, Fourth Circuit.

June 13, 1932.

W. D. Workman, of Greenville, S. C., for appellant.

John M. George, Insurance Atty., U. S. Veterans' Administration, of Richmond, Va. (Joseph A. Tolbert, U. S. Atty., of Greenville, S. C., William Wolff Smith, Sp. Counsel on Insurance Claims, Veterans' Administration, Annabel Hinderliter, and B. Y. Martin, Attys. Veterans' Administration, all of Washington, D. C., on the brief), for the United States.

Before PARKER and SOPER, Circuit Judges, and WAY, District Judge.

PARKER, Circuit Judge.

This is an appeal in an action instituted on a policy of war risk insurance. The insured was discharged from the army on March 29, 1919, and paid no further premium on the policy, which, according to its terms, lapsed shortly thereafter. Recovery is sought on the theory that at the time of his discharge insured was totally and permanently disabled as a result of pulmonary tuberculosis and that this condition continued up to the time of the trial. The trial judge directed a verdict for the government and the insured has appealed. Two questions are presented by the appeal: (1) Whether there was sufficient evidence of total and permanent disability to take the case to the jury; and (2) whether the exclusion of the declarations of the insured contained on reports of examining physicians of the government and the diagnosis and prognosis entered by the physicians on these reports constituted reversible error.

On the first question we are of opinion that the action of the court in directing a verdict for the government was clearly right. Without analyzing the evidence in detail, it is sufficient to say that there was proof tending to show that insured was suffering from tuberculosis at the time of his discharge from the Army, and that he has suffered from same from time to time since, the disease appearing to have been quiescent or arrested at times and active at other times. On the other hand, the evidence shows without contradiction that insured was regularly employed as storeroom keeper by the Piedmont & Northern Railway Company from November 15, 1919, to some time in January, 1930, a period of more than ten years, during which time he received wages amounting in the aggregate to $15,909.37. While there is evidence that at times during this period insured was assisted in the performance of his duties by other employees, the evidence is that he filled his position in a satisfactory manner and received two raises in wages and two bonus payments from his employer. In the face of such proof, the contention that the insured was totally and permanently disabled within any meaning which could possibly be ascribed to these terms is not one which reasonable men could accept; and under such circumstances the verdict was properly directed. As we said in United States v. Harrison (C. C. A. 4th) 49 F.(2d) 227, whether tuberculosis has resulted in total and permanent disability depends upon the facts of the particular case; but we do not think that evidence justifies a conclusion that such disability has resulted where it shows without contradiction that insured has worked continuously over a period of ten years. U. S. v. Wilson (C. C. A. 4th) 50 F.(2d) 1063; Nicolay v. U. S. (C. C. A. 10th) 51 F.(2d) 170; U. S. v. McGill (C. C. A. 8th) 56 F.(2d) 522.

On the second question, it appears that the insured offered in evidence the reports of government physicians who examined him from time to time in connection with his claim for disability compensation and made reports to the Veterans' Bureau as to his condition. The reports showed the physical findings of the physicians, their diagnoses of insured's ailment, their prognoses or opinions as to the probable cause of the disease, and their opinions as to the service origin of the disease and the extent of disability. The trial judge admitted in evidence so much of these reports as showed the physical findings of the examining physician, but excluded the remainder, and this exclusion is assigned as error. While we have held that entries on a tag, field medical card, and envelope attached to the clothing of a wounded soldier were admissible in evidence U. S. v. Wescoat, 49 F.(2d) 193, and that self-serving declarations by an insured contained in reports made by examining physicians were not admissible U. S. v. Wilson, 50 F. (2d) 1063, we have not heretofore passed upon the question presented here as to the admissibility of the report of the examining physician so far as same relates to his findings as to physical facts, his diagnosis, his prognosis, and his opinions as to origin of disease and extent of disability.

So far as the report of an examining physician in cases of this character relates to physical facts and his diagnosis of insured's ailment, we think it should be admitted, either in behalf of the insured or in behalf of the United States, on the principles approved in the Wescoat Case, supra. It falls clearly within the principles under which exceptions to the hearsay rule are admitted; i. e., necessity and circumstantial guaranty of trustworthiness. Wigmore on Evidence, vol. 2, § 1420 et seq. and vol. 3, §§ 1630-1636. As to trustworthiness, it is made by an official of the government in the regular course of duty, who presumably has no motive to state anything but the truth, and it is made to be acted upon, and is acted upon, in matters of importance by officials of the government in the discharge of their duties. It is made, moreover, as a professional matter by a member of a learned and honorable profession in whom the sense of professional pride, as well as the sense of official duty, is conducive to truth and accuracy. While the diagnosis must necessarily rest partly upon statements made by the person examined as well as upon the observations of the examining physician, we think that such diagnosis in a report should be admitted on the same principle that would apply if the physician were testifying. The diagnosis is the opinion of a scientific expert who has examined the insured, heard his statements, and observed his symptoms. It approximates a statement of fact, being...