Dean v. United States, Civ. No. 6950.

• Decision Date: 01 April 1957
• Docket Number: Civ. No. 6950.
• Citation: 150 F. Supp. 541
• Parties: Berniece I. DEAN, Guardian of Grover C. Dean, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

150 F. Supp. 541

Berniece I. DEAN, Guardian of Grover C. Dean, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 6950.

United States District Court W. D. Oklahoma.

April 1, 1957.

Kay Wilson, Jr., Muskogee, Okl., for plaintiff.

Leonard L. Ralston, Asst. U. S. Atty., Oklahoma City, Okl., for defendant.

WALLACE, District Judge.

The plaintiff, Berniece I. Dean, brings this action to recover for the total permanent disability of her ward, Grover C. Dean, pursuant to a $5,000 War Risk Policy held by such ward. The Government urges that the sued upon policy is no longer in effect, having expired on November 26, 1933 for non-payment of premium; and, that regardless, the plaintiff did not institute this action within the time allowed by the limitation provisions of the World War Veterans' Act, 1924, as amended, Title 38 U.S.C.A. § 445.

The undisputed evidence reveals that the insured enlisted in the United States Army on October 3, 1917, and was discharged therefrom April 5, 1919. Originally this veteran was insured for $10,000, but such policy lapsed from premium payment failure. However, on October 1, 1919, a $5,000 portion of the lapsed insurance was reinstated and converted to United States Government the insurance on the 20-payment life plan. Premiums were paid on the $5,000 converted insurance through November 30, 1931, with default occurring December 1, 1931. The reserve value of the policy, less the amount of an outstanding loan with accrued interest thereon, pursuant to policy terms was applied to purchase extended insurance for a period of one year and 361 days. This extended period expired November 26, 1933.

The sole issue is whether or not the instant veteran was permanently insane prior to premium default on the controverted policy, thus bringing into effect the saving clause of Section 445¹ and resulting in total permanent disability within the terms of such policy.

Courts cannot look with favor upon actions instituted many years after the relied upon causes first arose. As time passes the true facts become progressively more obscure and difficult to determine. And, in connection with War Risk Insurance, Congress has specifically provided that, in the absence of a legal disability of the party involved, claims must be instituted within six years from the time the claim has its genesis. However, if the very condition giving birth to the claim, such as disability through insanity, has the concomitant quality of preventing the insured from taking steps to protect his legal rights then the mere lapse of time cannot defeat a meritorious claim.

The issue presented is particularly vexing inasmuch as although a determination of insanity cannot rest upon mere speculation or conjecture,² yet, it cannot lie within the certain knowledge of this, or any other court to judge whether the instant ward was incompetent in January of 1930.

The Government heavily relies upon a number of medical reports prepared during the early 1930's which indicate that several different examining physicians did not consider this veteran incompetent. These expert opinions are highly persuasive and in most instances would be conclusive. However, under the peculiar circumstances of this case the court does not feel bound by such opinions. It is uncontroverted that on February 7, 1940, plaintiff's ward was ruled incompetent by the Veteran's Administration and given certain veteran's benefits. These benefits are still being allowed. Although this 1940 finding cannot, of itself, establish the alleged earlier incompetency, such finding together with events occurring subsequent to 1930 are factors properly cognizable in this action.³ Such is particularly persuasive where as here there was no objective evidence of either a marked or even discernible change in the insured's mental condition when in 1940 he was ruled incompetent.

Unquestionably the mental shortcoming now in view has existed for many years. There is lay testimony, by relatives of Dean and by other persons in a position to know, that the insured was possessed of certain peculiarities in early childhood. And, this testimony further establishes that after Dean returned from the service marked abnormalities were noticeable. These mental irregularities reached a climax in about the early 1930's.⁴ During 1930 and 1931 plaintiff's ward submitted to a number of physical and mental examinations. These examinations were prompted, among other things, by extreme nervousness and a constant ringing sound in his head. The lay evidence is unequivocal that from 1930 up through 1940 and on to the present time there has been no observable change in Dean's mental condition; and, that his actions throughout this entire time were not those of one who was sane or normal.⁵ Certainly Dean is not a raving maniac. In many respects he is endowed with considerable intelligence. However, to be incompetent in the eyes of the law one need neither be a violent madman nor a babbling idiot. The test is purely whether the subject is not sane or not competent as compared with accepted normalcy.⁶ The various reports made by examining physicians during the time germane to this lawsuit, although bearing conclusions of "competency", nonetheless contain evidence of abnormality which tends to corroborate the testimony of the various lay witnesses.⁷

It is the court's opinion that plaintiff's ward has been incompetent since January 1, 1930, and that such resulted in the total and permanent disablement of Dean. The insured has been unable to follow continuously any substantially gainful occupation,⁸ and, it is reasonably certain such disability will continue throughout his lifetime.

In light of the insured's permanent total disability by virtue of insanity, the sued upon policy has not expired or lapsed, and the plaintiff is entitled to judgment equal to $28.75 for each month since January 1, 1930, up to this date. And, this monthly payment shall continue throughout the life of plaintiff's ward or until his total disability no longer exists.

The court recognizes that 10% of the total amount recovered is a reasonable attorney's fee for plaintiff's counsel; and, this fee should be paid out of the recovered funds.

Within 15 days counsel should submit a journal entry which conforms with this opinion.

1 38 U.S.C.A. § 445 insofar as material here states: "* * * no suit on United States Government life (converted) insurance shall be allowed under this section unless the same shall have been brought within six years after the...