Carter v. United States, 3126.

• Decision Date: 13 April 1931
• Docket Number: No. 3126.,3126.
• Citation: 49 F.2d 221
• Parties: CARTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

49 F.2d 221 (1931)

CARTER v. UNITED STATES.

No. 3126.

Circuit Court of Appeals, Fourth Circuit.

April 13, 1931.

J. Crawford Biggs, of Raleigh, N. C. (J. M. Broughton, of Raleigh, N. C., on the brief), for appellant.

Davis G. Arnold, Associate Gen. Counsel, U. S. Veterans' Bureau, of Washington, D. C. (W. H. Fisher, of Clinton, N. C., U. S. Atty., and J. D. DeRamus, Regional Atty., of Charlotte, N. C., on the brief) for the United States.

Before PARKER and NORTHCOTT, Circuit Judges, and GLENN, District Judge.

PARKER, Circuit Judge.

This is an action to recover disability benefits under a war risk insurance policy which was kept in force until July 31, 1919. Plaintiff contends that at that time he was totally and permanently disabled within the meaning of the policy and has since remained in that condition. At the conclusion of the testimony a verdict was directed for defendant, and from judgment thereon plaintiff has appealed. The question in the case is whether there was substantial evidence of total and permanent disability on the part of plaintiff commencing prior to July 31, 1919, and continuing to the institution of the action. We think that there was.

Plaintiff was injured in battle on November 8, 1918. On November 11, 1918, he was severely gassed. He was sent to a field hospital, and later, in April, 1919, was sent to the United States. Upon his arrival here he was taken to Green Hut Hospital in New York City, where he remained three or four weeks. From New York he was sent to Camp Lee at Petersburg, Va., at which time, according to his testimony, he was coughing and spitting blood and was unable to work. He was discharged from the army on June 2, 1919, and went immediately to his home in Zebulon, N. C. On his way home, he suffered a hemorrhage on the train. He was sick upon his arrival, blind in one eye, and suffering from a bad cough. Two weeks later, while helping load a bag of oats on a wagon, he suffered another hemorrhage. He was examined by a physician in September following and found to be suffering from tuberculosis.

Plaintiff attempted to work in a knitting mill in Zebulon during 1919, but testifies that he stopped because he was not able to do the work. In January, 1920, he went to work with the Durham Hosiery Mill in Durham, N. C., but testifies that he was not able to work, that he coughed badly and spat up lots of blood. A neighbor noticed his condition and sent him to the Red Cross for treatment. He was placed in the hospital at Durham, was sent from there to the North Carolina Tuberculosis Sanatorium, and from there to Government Hospital No. 26 at Greenville, S. C., where he remained for fourteen months. From Greenville, he was sent home as permanently disabled some time in the year 1921. Since then he has been for treatment to the government hospital at Oteen, N. C., on four or five different occasions, has been to the Naval Hospital at Norfolk, Va., and has spent eighteen or nineteen months in a hospital at Johnson City, Tenn. There is evidence that he did some work in the years 1926 and 1927, but he testifies that he was unable to work regularly and that on some days he could not work at all.

Plaintiff is a manual laborer and is uneducated. The evidence is that when he entered the army he weighed 185 or 190 pounds, but that at the time of his discharge he weighed only 135 or 140 pounds, which was his weight at the time of the trial. His statement as to his condition and as to his inability to work was corroborated by a number of witnesses, several of whom were physicians.

We think that this evidence was amply sufficient to take the case to the jury. Total and permanent disability within the meaning of these war risk insurance policies has been defined by a regulation promulgated by the Director of the Bureau of War Risk Insurance under section 13 of the War Risk Insurance Act 1917, as amended, 40 Stat. 555, and section 5 of the World War Veterans' Act, 43 Stat. 608, 38 USCA § 426. White v. U. S., 270 U. S. 175, 46 S. Ct. 274, 70 L. Ed. 530. This regulation is as follows:

"Any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation shall be deemed, in Articles III and IV, to be total disability.

"`Total disability' shall be deemed to be `permanent' whenever it is founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering from it. Whenever it shall be established that any person to whom any installment of insurance has been paid as provided in Article IV on the ground that the insured has become totally and permanently disabled has recovered the ability to continuously follow any substantially gainful occupation the payment of installments of insurance shall be discontinued forthwith and no further installments thereof shall be paid so long as such recovered ability shall continue."

The word "continuously," as used in the regulation, must be given a reasonable interpretation, and we approve the rule laid down by the Circuit Court of Appeals of the First Circuit in Ford v. U. S. (C. C. A. 1st) 44 F.(2d) 754, 755, as follows: "We think the word `continuously' should be construed as meaning with reasonable regularity; that it does not cover mere periods of disability such as are ordinarily incident to the activities of people in generally sound health. On the other hand, if such claimants are able to follow gainful occupations only spasmodically, with frequent interruptions due to disability, they are entitled to recover under the act."

The mere fact that a claimant may have worked for substantial periods during the time when he claims to have been permanently and totally disabled is not conclusive against him. The question is not whether he worked, but whether he was able to...