Hamilton v. United States
| Decision Date | 10 November 1934 |
| Docket Number | No. 7410.,7410. |
| Citation | 73 F.2d 357 |
| Parties | HAMILTON v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
R. W. Smith, Jr., of Gainesville, Ga., for appellant.
Lawton H. Ware, Veterans' Administration, of Atlanta, Ga., Dunbar Harrison, Asst. U. S. Atty., of Savannah, Ga., and Joseph H. San, Atty., Dept. of Justice, of New York City, for the United States.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
After a few months' service in the Army, Lee Hamilton was discharged on December 18, 1918, having a persistent dysentery, and he paid no premium thereafter on his war risk insurance policy. Suit was brought on it in October, 1931. After hearing the evidence offered in Hamilton's behalf, the court directed a verdict against him. His appeal presents the single question whether there was substantial evidence to show that he was totally and permanently disabled during the life of his policy. The evidence was given by himself, his wife, several relatives by blood and marriage, and by two physicians who had treated him at intervals; Dr. Hall beginning in the spring of 1919, and Dr. Fussell in September, 1920. His ailment was thought at first to be chronic dysentery, but in September, 1920, Dr. Fussell definitely diagnosed it as amoebic dysentery and discovered also heart weakness. Neither he nor Dr. Hall forbade Hamilton's working, but he was told to "go slow and take everything easy and quiet." His dysentery would get better at times, but at other times he would have to go to bed. In 1926 he went to a Veterans' Hospital, and was then first treated for his heart. The dysentery was considerably relieved, but returned afterwards, and both that and his heart trouble have gotten worse rather than better. Both doctors, after a recital to them of the definitions of total and permanent disability as given in Treasury Decision 20WR, on the facts they knew and those stated to them about Hamilton's work record, testified without objection that in their opinion he was totally and permanently disabled in December, 1918, and at the time of the trial. His work record briefly stated is that, being a farmer, he rented a small farm in 1919 and partly worked it, but was sick a good deal and had to hire help. He made a bale and a half of cotton beside foodstuffs enough for himself and mule. He married in December of that year. In 1920, 1921, and 1922 he continued to run a one-horse farm, his wife helping with the work and her brother swapping work with him. He hired occasional day labor as he needed it. In 1923 he hired a hand regularly for six months. The farming continued through 1926 and 1927, though in both these years he spent a few weeks in a government hospital. He tried blacksmithing, but could not stand the work. The next two years he ran a dairy on halves, he and his wife milking ten cows. He has done but little since. During all his years of farming he has made from two to five bales of cotton per year, besides foodstuffs for his stock and family, by hiring help. While not able to work regularly, nor strong enough to do a man's full work, the fact remains that he did continuously make a scanty living by farming for several years after his policy lapsed. Work at times temporarily aggravated the dysentery, but it is not proven that he injured his health by work. On the contrary, Dr. Fussell says that he followed instructions and took care of himself, or he would have been dead. These facts show that while Hamilton was an ill man he was not totally but only partially disabled when his policy lapsed, and both physicians testified that his then main trouble, amoebic dysentery, is often curable, so that in January, 1919, it did not appear with any reasonable certainty that he would not get well. Evidently when he married at the end of that year he and his bride thought he would. Dr. Fussell is himself a World War veteran, and must have known that Hamilton had had insurance when he began to treat him in 1920. If he then considered him totally and permanently disabled since January, 1919, a claim would have been made under the policy. No reason is offered why the claim was delayed until 1931.
The case on its facts is within the rulings made in Lumbra v. United States, 290 U. S. 551, 54 S. Ct. 272, 78 L. Ed. 492, except for the opinion evidence of the physicians that Hamilton was from 1918 totally and permanently disabled within the...
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