Dixon v. United States

• Decision Date: 05 July 1940
• Docket Number: No. 7092.,7092.
• Citation: 113 F.2d 640
• Parties: DIXON v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

113 F.2d 640 (1940)

DIXON v. UNITED STATES.

No. 7092.

Circuit Court of Appeals, Seventh Circuit.

July 5, 1940.

Julius C. Martin, Wilbur C. Pickett, and Young M. Smith, all of Washington, D. C., for appellant.

Howard L. Doyle, U. S. Atty., Howard C. Knotts, and Lawrence Hoff, all of Springfield, Ill., and C. C. Worthy, of Hardin, Ill., for appellee.

Before EVANS, TREANOR, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

This is a war risk insurance case in which the defendant is appealing from a judgment based upon the verdict of a jury that John L. Dixon was permanently and totally disabled on January 13, 1919.

Dixon entered the services on April 3, 1918, and was granted war risk insurance, payable in the event of total permanent disability occurring while the contract was in force. He went overseas and as a sergeant in the Engineering Corps participated in three major engagements. On January 13, 1919, while in France, he suffered an injury to his left foot and was confined to a hospital for five days. He was honorably discharged from service on April 5, 1919.

In his petition Dixon alleged that he became permanently totally disabled on January 13, 1919 as a result of traumatic neuritis, sciatic nerve, left; psycho-neurosis and sciatic perineuritis. And so it was incumbent that he prove that his disability was of such a character that it rendered him incapable of pursuing with reasonable regularity any substantial gainful occupation and that such disability was based upon conditions which rendered it reasonably certain that his disability would continue throughout his life.

In discussing what constitutes permanent total disability the Supreme Court in Lumbra v. United States, 290 U.S. 551, page 559, 54 S.Ct. 272, 276, 78 L.Ed. 492, said: "`Total disability' does not mean helplessness or complete disability, but it includes more than that which is partial. `Permanent disability' means that which is continuing as opposed to what is temporary. * * * The mere fact that one has done some work after the lapse of his policy is not of itself sufficient to defeat his claim of total permanent disability."

In United States v. Phillips, 8 Cir., 44 F.2d 689, 691, it was said: "The term `total and permanent disability' does not mean that the party must be unable to do anything whatever; must either lie abed or sit in a chair and be cared for by others. The test laid down in the cases is well stated in United States v. Sligh (C. C.A.) 31 F.(2d) 735, 736, as follows: `The term "total and permanent disability" obviously does not mean that there must be proof of absolute incapacity to do any work at all. It is enough if there is such impairment of capacity as to render it impossible for the disabled person to follow continuously any substantially gainful occupation.'"

In our case counsel for the defendant contends that there is no substantial evidence to support the verdict, and that a peremptory instruction, which he offered at the close of all the evidence, instructing the jury to find for the defendant, should have been given.

Under such circumstances, as this court stated in American National Bank & Trust Co. v. United States, 7 Cir., 104 F.2d 783, 784, 785: "A question of law is thus presented, which calls for a consideration of the record, not for the purpose of weighing conflicting testimony, but for the purpose of determining whether there was some evidence, competent and substantial. In the consideration of such a question, it is the duty of the court to take that view of the evidence, and all the inferences that may properly be drawn therefrom, most favorable to the plaintiff, and, if the evidence is of such a character that reasonable men in a fair and impartial exercise...