United States v. Johnson

• Decision Date: 13 September 1934
• Docket Number: No. 9862.,9862.
• Citation: 72 F.2d 614
• Parties: UNITED STATES v. JOHNSON et ux.
• Court: U.S. Court of Appeals — Eighth Circuit

72 F.2d 614 (1934)

UNITED STATES v. JOHNSON et ux.

No. 9862.

Circuit Court of Appeals, Eighth Circuit.

September 13, 1934.

Frederick H. Wagener, Atty., Department of Justice, of Lincoln, Neb. (Charles E. Sandall, U. S. Atty., and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb., Robert Van Pelt, Asst. U. S. Atty. of Lincoln, Neb., and Fred G. Hawxby, Asst. U. S. Atty., of Omaha, Neb., on the brief), for the United States.

Carl T. Self of Omaha, Neb. (J. J. Gallagher, of Omaha, Neb., on the brief), for appellees.

Before GARDNER, SANBORN, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

Appellees are the parents of Clarence R. Johnson, deceased, and the joint beneficiaries in a war risk insurance policy in the sum of $10,000, granted to the insured while in service. Deceased enlisted in the Navy of the United States November 16, 1917, and was honorably discharged therefrom September 31, 1919. He died April 8, 1920, aged a little more than twenty-six years.

September 4, 1930, appellees presented to the United States Veterans' Bureau and Veterans' Administration of the United States a claim for payment of the insurance covered by the policy. This claim was rejected July 29, 1931. On or about August 10, 1931, appellees filed this suit in the District Court of the United States for the District of Nebraska, alleging: "That the said insured received total and permanent injuries and disabilities while in the said service of the defendant as aforesaid and contracted mental and physical disease by reason of which he was unable to carry on a gainful occupation and of such a character that finally resulted in his death on or about April 8th, 1920 as result of deranged mental condition contracted while in the said service, and that said disabilities and disease was incurred during the said service of the insured in the said United States Navy and during the time that the said policy of insurance was in full effect and force and that the said policy matured at the time of the said injuries and discharge of the said insured at which time the insured was totally and permanently disabled as contemplated by law."

The answer, alleging that the policy of insurance lapsed for the nonpayment of the premium due December 1, 1919, denied liability thereunder. A jury trial resulted in a verdict for appellees, from which the government appeals. The issue in suit is thus clearly and succinctly stated by the trial court in its charge: "The mother and father bringing this suit upon this contract of insurance claim that the deceased, Clarence Robert Johnson, did become totally and permanently disabled, within the meaning of the contract, at or before said 31st day of December, 1919, and, as explained by their testimony in this case, their claim is that he became the victim of and had dementia praecox of such a character as to totally disable him and of such a character as to permanently disable him."

"Dementia praecox" is defined by the medical witnesses as a specific form of insanity; that is to say, a mental disease that usually comes on about the period of adolescence, made up of peculiar behavior, and resulting in a progressive mental deterioration, permanent and incurable. To warrant recovery it was necessary for appellees to prove that this mental state existed while the policy was still in force, that it was permanent and irremediable, and that its presence made it impossible for the insured to follow continuously any substantially gainful occupation within the established rule. To sustain the burden, thus imposed by law, appellees introduced witnesses testifying that deceased had spent three years as a student at the University of Nebraska, and a year at a business college thereafter in the city of Omaha; that he was ambitious, and cheerful in disposition, much attached to the study of music, and somewhat skilled in the use of musical instruments; that he was of a social nature and interested in life generally. A number of witnesses, including his parents, testified to a marked change in him in these respects upon his return from service. He complained of not feeling well, of headaches, was discontented, nervous, restless, and dissatisfied. He was less inclined to social intercourse, less interested in affairs generally, and apparently took no interest in music, to which he had formerly been greatly attached. He displayed no ambition nor desire to get something to do, nor to decide upon any future line of business or employment. At his father's suggestion he took employment in a clothing store about March 1, 1920, and remained there until April 5, 1920. Patrons of the store in which he worked saw nothing noticeably unusual in his appearance. He left without notice to any one and was found dead in Chicago shortly thereafter. A number of his acquaintances, witnesses for the defense, testified that they noticed that he was somewhat nervous and restless after his return from service, but did not observe anything unusual or odd about him otherwise. The witness Johnson, himself an ex-service man, testified as follows: "During the times I saw him after the War, I wouldn't say I noticed anything unusual about him or anything out of the ordinary. He might have been a little fidgety or nervous, you might say. I saw him walking down the street. I wouldn't say there was anything unusual about his walk. I never observed anything unusual about Clarence Johnson's mentality, only it seemed like he wasn't just satisfied to stay one place and another and would be up and down the street, and he wouldn't stay very long in any one place. I don't have any explanation for that, unless he was just dissatisfied around there; probably after coming out of the service would be the only thing. It didn't seem the same after coming out of the service if you were gone any length of time. I believe that condition applied to all men in the service a little more or less."

Apparently the alleged peculiarities and changes to which reference has been made were deemed scarcely sufficient to establish a mental condition of the seriousness pleaded; and reliance was placed upon the claim of suicide as the cause of death, and as a significant result of the progressive mental disease with which he was claimed to be afflicted. At this critical stage of the testimony the following took place in the course of examination of J. M. Johnson, the father:

"Q. (by counsel for plaintiffs): Did you make any investigation then after you got there (Chicago), Mr. Johnson, as to the cause of his death? A. Why yes.

"Q. What did you discover from your investigation was the cause of his death?

"Objected to as not the best evidence, no foundation laid and hearsay.

"The Court: Are you without witnesses to show the manner of his death?

"Mr. Self (for plaintiffs): There was nobody there. The only thing we can show at this time is the photostatic copy of the coroner's jury which we took from the government's records, signed by the jury themselves, showing the cause of death.

"The Court: I will admit that in the evidence.

"To which ruling of the court the defendant then and there duly excepted."

Plaintiffs then offered in evidence Exhibit 6, being the said photostatic copy of the proceedings of the coroner's court relating to the findings as to the death of Clarence Robert Johnson. Counsel for defendant then objected to the introduction of this exhibit. The objection was overruled and an exception was preserved. Later on counsel for plaintiffs offered in evidence a photostatic copy of the death certificate filed with the Bureau of Vital Statistics of the Chicago Department of Public Health, stating "we want to introduce this only to show the cause of death in Chicago and the date." The certificate was received in evidence by the court over the seasonable objection and exception of appellant, and contained the following statement: "The cause of death was as follows: From asphyxiation due to inhaling illuminating gas with suicidal intent while temporarily insane."

The report of the coroner's inquest contained the testimony of witnesses examined in which it was repeatedly stated that, in their opinion, the deceased committed suicide. In their attempt to prove that the insured was suffering from dementia praecox, and was, therefore, totally and permanently disabled from following continuously any gainful pursuit while the policy of insurance was in force, counsel for appellees propounded hypothetical questions to three medical witnesses. The...