Garrison v. United States, 3388.

• Decision Date: 02 December 1932
• Docket Number: No. 3388.,3388.
• Citation: 62 F.2d 41
• Parties: GARRISON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

62 F.2d 41 (1932)

GARRISON v. UNITED STATES.

No. 3388.

Circuit Court of Appeals, Fourth Circuit.

December 2, 1932.

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

Joseph A. Tolbert, U. S. Atty., of Greenville, S. C. (Davis G. Arnold and Lawrence A. Lawlor, Attys., Veterans' Administration, both of Washington, D. C., on the brief), for the United States.

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

PARKER, Circuit Judge.

This is an appeal in a war risk insurance case in which verdict was directed for the government. Premiums paid on the policy of insurance continued it in force until October 31, 1919. The only question presented by the appeal is as to the sufficiency of the evidence to establish total and permanent disability at that time. When the evidence is viewed in the light most favorable to plaintiff, as under the well-settled rule it must be on motion to direct a verdict against him, we think that it was sufficient to carry the case to the jury, and that the learned judge below erred in directing the verdict.

There is evidence tending to show that when plaintiff was discharged from the army he was suffering from tuberculosis, some affection of the heart, and psychoneurasthenia resulting from shell shock. The evidence is that he was not physically able to do any sustained manual labor and that his mental condition was such that he was unable to do lighter forms of work requiring the exercise of his mental faculties. There is evidence, it is true, that he did some irregular work for a few months on a farm and around the store of his father-in-law, and that, after his marriage, he stayed around a store which was run by his wife; but there is evidence which, if believed, shows that he was not able to do the farm work which he attempted, and that around the store he did practically nothing and was not mentally able to do anything. There is no work record to contradict those who testify to his mental and physical incapacity; and two physicians who examined him, one as early as the fall of 1919, testify positively to his total and permanent disability.

We do not think that the testimony as to the tuberculosis of plaintiff would have been sufficient of itself to take the case to the jury. As has been pointed out in a number of recent cases, the mere fact that a man has tuberculosis does not necessarily mean that he is totally and permanently disabled. The tuberculosis may not result in total disability, and, even if it have this result temporarily, unless the condition is such as to preclude the possibility of arresting the disease, it cannot be said that the disability is permanent. Eggen v. U. S. (C. C. A. 8th) 58 F.(2d) 616. But in this case, there was the added element of psychoneurasthenia resulting from shell shock; and, if the testimony as to this is believed and taken in the light most favorable to plaintiff, his mental condition resulting therefrom was such as to render it impossible for him to pursue any substantially gainful occupation. Disability may result as well from the condition of the mind and nerves as from other causes. Where a man is so inattentive or forgetful as a result of mental disorder that he cannot be trusted to carry on...