Adams v. United States
| Citation | 116 F.2d 199 |
| Decision Date | 13 December 1940 |
| Docket Number | No. 7339.,7339. |
| Parties | ADAMS v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Stephen A. Cross, of Chicago, Ill., for appellant.
Arthur Roe, of East St. Louis, Ill., Wm. M. Lytle, of Chicago, Ill., and Julius C. Martin and Wilbur C. Pickett, both of Washington, D. C., for appellee.
Before EVANS, TREANOR, and KERNER, Circuit Judges.
This action was brought by the plaintiff to recover on a policy of war risk insurance issued to Adams, who was in the United States Army from May 17, 1917, to January 19, 1920, when he was honorably discharged. The case was tried to a jury. At the close of all the evidence the defendant moved for a directed verdict on the ground that there was no substantial evidence to support a finding for the plaintiff. The District Court reserved its ruling and submitted the case to the jury. The jury returned a verdict for the plaintiff, finding that he became totally and permanently disabled on January 10, 1920. Thereafter defendant moved for judgment notwithstanding the verdict, which the trial court granted, set aside the verdict, dismissed the complaint and rendered judgment for costs against the plaintiff. To reverse the judgment plaintiff appeals.
The question presented is whether the evidence was such as to justify the court's ruling as a matter of law that there was lack of substantial evidence that plaintiff was totally and permanently disabled while his insurance was in force.
In the examination of this question we are not to weigh the evidence and what our verdict would have been as jurymen is immaterial. It is likewise of no importance that we may be of the opinion that the evidence preponderates in favor of the defendant, for the reason that the responsibility of weighing the facts lies with the jury. United States v. Dudley, 9 Cir., 64 F.2d 743.
In our case we must assume as established all the facts that the evidence supporting plaintiff's claim reasonably tends to prove, and there should be drawn in his favor all the inferences fairly deducible from such facts. Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492, and Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720.
In an action of this character the plaintiff must show (1) that before the policy lapsed he was totally disabled, i. e., that his disability was of such a character that he was incapable of pursuing with reasonable regularity any substantially gainful occupation; and (2) that this disability was of a permanent character, i. e., that it was based upon conditions which rendered it reasonably certain at the time that it would continue throughout the life of the insured. United States v. Diehl, 4 Cir., 62 F.2d 343 and Eggen v. United States, 8 Cir., 58 F.2d 616.
The evidence introduced and relied upon by plaintiff tended to prove that at the date of his enlistment he was 24 years of age, in good health, and had been employed as a railroad brakeman. Upon enlistment he was sent to Brownsville, Texas and there engaged in border patrol work. While at Brownsville, undergoing gas training in a gas chamber in June, 1918, he was gassed, compelled to leave the chamber and thereafter suffered from pain in his lungs. He was confined in an army hospital, then ordered to the United States Hospital at Fort Bayard, New Mexico, where he remained for 18 months until December 12, 1919, on which date a Board of Army Medical Officers recommended his discharge from service on account of "active pulmonary tuberculosis" involving both upper lobes. Upon his discharge on January 19, 1920, he retired to his father's farm at Marion, Illinois, and there was treated by physicians who prescribed light exercise with afternoon rests. On February 24, 1920 a physical examination disclosed "chronic bronchitis slight," and on September 16 his disability was diagnosed as "pulmonary tuberculosis, quiescent."
In May 1921 while at the Hines Hospital, he was examined and his illness diagnosed as "pulmonary tuberculosis, moderately advanced, active." Between that date and the trial of this case on November 29, 1939, numerous other physical examinations were made of plaintiff and diagnosed as follows:
May 10, 1921. Pulmonary tuberculosis, moderately
advanced, Rii Li, active
training not feasible
October 18, 1921. Pulmonary tuberculosis, chronic
quiescent
December 28, 1923. Pulmonary tuberculosis, moderately
advanced
March 24, 1924. Pulmonary tuberculosis, active,
moderately advanced.
April 3, 1925. Pulmonary tuberculosis, moderately
advanced.
October 14, 1925. Chronic pulmonary tuberculosis,
moderately advanced, active.
January 23, 1928. Pulmonary tuberculosis, chronic,
advanced, low grade activity.
October 26, 1928. Pulmonary tuberculosis, chronic,
moderately advanced, active.
February 27, 1931. Pulmonary tuberculosis, chronic,
moderately advanced, active.
March 3, 1933. Chronic pulmonary tuberculosis,
moderately advanced, active.
April 26, 1935. Chronic pulmonary tuberculosis,
moderately advanced, active.
December 17, 1935. Chronic pulmonary tuberculosis,
moderately advanced, inactive.
June 12, 1936. Pulmonary tuberculosis, chronic,
active.
In November, 1939, a chest specialist made an examination of plaintiff and testified that "the rales and moisture in the upper part of the chest were suggestive of active tuberculosis" but admitted that...
To continue reading
Request your trial
-
Mortgage Corp. of N. J. v. Aetna Cas. & Sur. Co.
...be found for the party having the onus.' See also Butte Copper & Zinc Co. v. Ameriman, 157 F.2d 457 (9th Cir. 1946); Adams v. United States, 116 F.2d 199 (7th Cir. 1940); Barron and Holtzoff, Federal Practice and Procedure, section 1080. The 'state of a man's mind is as much a fact as the s......
-
Rice v. Union Pacific R. Co.
...General American Life Ins. Co. v. Central Nat. Bank 6 Cir., 136 F.2d 821; Applebaum v. United States, 7 Cir., 274 F. 43; Adams v. United States, 7 Cir., 116 F.2d 199; Childs v. Radzevich, 78 U.S.App.D.C. 235, 139 F.2d 374; Pruitt v. Hardware Dealers Mut. Fire Ins. Co., 5 Cir., 112 F.2d 140;......
-
Anderson v. Hudspeth Pine, Inc., 6734.
...4 MacKay v. Costigan, 7 Cir., 179 F.2d 125, 128; Baltimore & O. R. Co. v. Postom, 85 U.S.App.D.C. 207, 177 F.2d 53, 54; Adams v. United States, 7 Cir., 116 F.2d 199, 200. 5 Whittington v. Mayberry, 10 Cir., 190 F.2d 703, 705; Bailey v. Slentz, 10 Cir., 189 F.2d 406, 407; Danaher v. United S......
-
Cheffey v. Pennsylvania R. Co., Civil Action No. 5913.
...Co. v. Yeatts, 4 Cir., 1941, 122 F.2d 350, 353; United States v. Robinson, D. C. Dist. of Col., 1947, 71 F.Supp. 9; Adams v. United States, 7 Cir., 1940, 116 F.2d 199, 202; Mt. Adams & E. P. Inclined R. Co. v. Lowery, 6 Cir., 1896, 74 F. 463, 470. In the latter case In 74 F. at page 471, th......