United States v. Green, 9489.
| Citation | 69 F.2d 921 |
| Decision Date | 05 March 1934 |
| Docket Number | No. 9489.,9489. |
| Parties | UNITED STATES v. GREEN. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
V. E. Willis, Chief Atty., U. S. Veterans' Administration, of Kansas City, Mo. (William L. Vandeventer, U. S. Atty., and Claude E. Curtis, Asst. U. S. Atty., both of Kansas City, Mo., on the brief), for appellant.
Platt Hubbell, of Trenton, Mo., for appellee.
Before STONE and KENYON, Circuit Judges, and REEVES, District Judge.
The statute creating war risk insurance (40 Stat. 398, 409) provides for insurance against death or "total permanent disability." This insurance was voluntary and a matter of contract. It was in force during the life of the contract (the policy). Therefore, to entitle to recovery thereunder the insured must (where death is not involved) establish "total permanent disability" during the life of the contract Lumbra v. United States (January 8, 1934) 54 S. Ct. 272, 78 L. Ed. ___; and, in this court United States v. Cornell, 63 F.(2d) 180; United States v. Peters, 62 F.(2d) 977, 978; United States v. Harth, 61 F.(2d) 541, 543. Whether a claimed disability was "total permanent" and was such during the life of the contract are questions of fact. The initial determination of these fact questions is placed by the statute (40 Stat. 398, 410) in the bureau of war risk insurance with provision for judicial determination in case of disagreement in the bureau. To aid the bureau in performing its duties, the statute (40 Stat. 398, 399) authorized the director of the bureau to make rules and regulations covering various matters including "the nature and extent of the proofs and evidence * * * to establish the right to benefits of * * * insurance provided for in this Act." In pursuance of that power and to define the meaning of the terms "total" and "permanent" (as applied to disability), the director ruled (T. D. 20 W. R.) that While "the above-quoted administrative decision is not, and manifestly was not intended to be, an exact definition of total permanent disability or the sole guide by which that expression is to be construed" (Lumbra v. United States, 54 S. Ct. 272, 276, 78 L. Ed. ___, decided January 8, 1934), and while such definition is, obviously, not binding upon courts, yet it has been found useful and has influenced many decisions on this character of insurance. In the Lumbra Case, supra, it is well said: "The various meanings inhering in the phrase make impossible the ascertainment of any fixed rules or formulæ uniformly to govern its construction." About all that can be said is that the phrase is "to be construed reasonably and having regard to the circumstances of each case," remembering that "`total disability' does not mean helplessness or complete disability, but it includes more than that which is partial" and (Lumbra Case).
The experience of the courts in considering "the circumstances of each case" has developed that certain lines of evidence are, from their very nature, nearly always present and are important. One of these is the character of disability when considered in connection with the individuality of the person disabled. The disability may be of a character (violent insanity for example) which would "totally" disable any person, regardless of differences in individuality. Often, however, the disability is of a kind that its extent depends more largely upon the individuality than upon the character of the disability. Thus the loss of both legs might totally disable a common laborer with slight education and with little stamina and initiative while it would have relatively slight effect upon the earning capacity of a college teacher. Thus the individuality of a claimant may be an important and even a controlling element in the circumstances of his particular case. Another line of evidence has to do with the claimant's condition after the lapse of the contract. While such evidence "may be considered only for the purpose of determining his condition while the contract was in force" (Lumbra Case), it, obviously, has a direct bearing upon the permanency of the injury and often upon the totality at the time of the lapse. In consideration of this character of evidence, it is necessary to bear in mind that conditions which may have existed during the contract may be only earlier stages of some ailment which progressively grows worse until after lapse of the contract it causes, for the first time, total and permanent disability. Thus it not infrequently happens that a total permanent disability clearly shown to exist at the time of trial became such only after, sometimes long after, the contract lapsed.
With the above general observations in mind, we consider the evidence here as to the circumstances of this particular claimant. This evidence shows that appellant was a healthy, strong young farm hand when he volunteered in June, 1917. His educational qualifications are not shown. He was a man of character who wanted to do a man's part. In April, 1918, he was severely injured while he and other soldiers were carrying a heavy pontoon bridge boat. Some of the other men released their support resulting in the weight of the boat, unexpectedly, crushing him to the ground. The boat was lifted from him and he was taken to the company doctor who examined him but lacked X-ray equipment to ascertain the extent of injury. He recognized that appellant was severely injured but diagnosed merely as "traumatism" and thought the injury would last several years. He taped the body and appellant was confined to his tent for about three weeks during much of which he was lying down. At first, he was unable to stand but became better. After he recovered so as to leave the tent, he was unable to do the heavy work required of the engineers regiment (to which he was attached). Therefore, he was transferred (over his protest) to the headquarters regiment, where the work was lighter. His history after leaving his tent and up to his discharge from the army, in June, 1919, is as shown in the footnote.1 After his discharge from the army, he worked for Mason Brown. Thereafter, he tried farming on several farms — successively the Pipol farm (1920-1921), the Johnson farm (1922-1924), the Coleman farm (1925), and the Conservative farm (1926-1927). The testimony as to these operations is as in footnote2.
After leaving the last above farm; he moved to Gallatin, Mo., where he attempted some light work and then went to Winston, Mo., where he attempted to operate a res-
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
taurant. His last attempt was with a farm near Winston. The testimony covering the time in Gallatin, in Winston, and on the farm near Winston is as set out in footnote3. The medical testimony is as set out in footnote4. The outline of testimony stated in this opinion and footnotes is entirely from testimony of witnesses placed on the stand by plaintiff and none of whom were hostile to him. The defendant presented testimony, both lay and medical, to the contrary, but we have taken no account thereof.
Taking the case thus made by plaintiff and drawing such reasonable deductions therefrom in his favor as seem justified, we think the situation is, concisely stated, as follows: The injury from the fall of the boat upon plaintiff is the source and cause of his subsequent trouble and condition. He did not believe he was totally or permanently injured until some years after he left the service and after this contract lapsed. He endeavored to do the kind (farm) of work he had done before entering the army. He was never able to do some kinds of that work — such as required lifting or back strain — and there were other kinds which caused him discomfort and, at times, pain. There were other kinds of farm work which he could do. As a result of this condition, he did about a third of the work required on a farm for several years after leaving the service. This work included general farm work with the exception of some kinds (as above indicated) which he could not do at all or only for limited periods or in limited amounts. His trouble and condition grew progressively worse until he was practically totally disabled when he went to Gallatin, in 1928. He has grown no better since and probably will not. The result of what has been said above in this paragraph is that he was not totally nor permanently disabled at the time this contract lapsed.
Another consideration which may be mentioned is as follows: In the Lumbra Case, about ten years had intervened between the lapse of the contract and the claim thereunder. That situation is here present for this contract lapsed in July, 1919, and claim was made in 1929. As to that situation, the Supreme Court, in that case, said: "In the absence of clear and satisfactory evidence explaining, excusing, or justifying it, petitioner's long delay before bringing suit is to be taken as strong evidence that he was not totally and permanently disabled before the policy lapsed" citing United States v. Hairston, 55 F.(2d) 825, 827 (C. C. A. 8); Wise v. United States, 63 F.(2d) 307, 308 (C. C. A. 5); United States v. Linkhart, 64 F.(2d) 747, 748 (C. C. A. 7); Eggen v. United States, 58 F.(2d) 616, 618 (C. C. A. 8). Even if our conclusion that the evidence results as set forth in the just preceding paragraph be incorrect, we...
To continue reading
Request your trial
-
New York Life Ins. Co. v. Stoner
...disabled" contained in war risk insurance policies. Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492; United States v. Green, 8 Cir., 69 F. 2d 921; United States v. Rice, 8 Cir., 72 F. 2d 676, 677; Thompson v. United States, 8 Cir., 65 F.2d 897; United States v. Weeks, 8 Ci......
- Matheson v. National Surety Co.
-
Boyko v. United States, 3032.
...272, 78 L.Ed. 492; U. S. v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617; U. S. v. Tyrakowski, 7 Cir., 50 F.2d 766; U. S. v. Green, 5 Cir., 69 F.2d 921; Cockrell v. U. S., 8 Cir., 74 F.2d 151; U. S. v. Newcomber, 8 Cir., 78 F.2d 50; U. S. v. Jones, 10 Cir., 65 F.2d The weight of the ......