Drew v. United States

• Decision Date: 28 June 1939
• Docket Number: No. 7845.,7845.
• Citation: 104 F.2d 939
• Parties: DREW v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

104 F.2d 939 (1939)

DREW v. UNITED STATES.

No. 7845.

Circuit Court of Appeals, Sixth Circuit.

June 28, 1939.

J. S. Edmondson, of Memphis, Tenn. (Dixon, Williams & Edmondson, of Memphis, Tenn., on the brief), for appellant.

Thomas E. Walsh, of Washington, D. C. (Julius C. Martin, Fendall Marbury, Young M. Smith, all of Washington, D. C., and William McClanahan and C. P. J. Mooney, both of Memphis, Tenn., for appellee.

Before HICKS, SIMONS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This action was brought by appellant to recover on a $10,000 war risk insurance policy issued to Thomas Drew, who, at the age of twenty-two, was drafted into the United States Military Service April 11, 1918, and was discharged September 11, 1919, and died of pulmonary tuberculosis July 4, 1927. Appellant, wife of the deceased, and his mother, Edna Drew, were joint beneficiaries. His mother died March, 1936. The insured paid no premiums on his policy after his discharge; however, appellant contends it matured because of his total and permanent disability while in the service.

The insured made no claim under the policy during his lifetime but on June 8, 1931, appellant, claiming to be the sole beneficiary of his estate and of the policy, filed claim which was denied by the Veterans' Bureau June 18, 1935. She instituted this action June 27, 1935, both individually and as administratrix of the insured, seeking, in her individual capacity, to recover two hundred and forty monthly installments of $57.50, from July 4, 1927, and as administratrix, the same monthly installments from September 11, 1919, to July 4, 1927.

The lower court dismissed her action insofar as she sought recovery in a representative capacity on the sole ground that no claim had theretofore been filed by her on that account with the Veterans' Bureau and on the trial of the cause at the conclusion of her evidence, directed a verdict for the United States.

The insured received a high school education and at the time he entered the military service, was employed as a packer of china, at a salary of $50 a month, by a wholesaler in Memphis, Tennessee. He married in August, 1917, and lived with his wife until his death except while absent in the military service. He had no children. When inducted into the service, he was in good health and served over-seas from September 23, 1918, to July 16, 1919, and was free from physical disability while abroad, except in April, 1919, when he contracted gonorrhea, from which he was apparently cured. He was returned to Camp Lee, Virginia, preparatory to discharge and on July 21, 1919, signed a statement that he was free from physical disability.

However, on casual physical check-up, tuberculosis was suspected and on July 31, 1919, on an X-ray examination, the diagnosis of the ward surgeon was "Pleurisy, chronic, fibrinous, left; in line of duty" and he was admitted to the base hospital the next day where he remained until September 10, 1919, with frequent examinations and treatments. His chest was aspirated and flaky, amber-colored fluid removed August 4, 1919, and three times thereafter. All examinations had while in the hospital were diagnosed as chronic pleurisy with effusions in the left base. On the date of his discharge, September 10, 1919, the examination showed the following:

"Chronic pleurisy with effusion left base. Sept. 10, 1919 Tbc. pulmonary chronic inactive both upper lobes. Chr. pleurisy left. In L. O. D. Dis. 40% A. H. B.

( is ) "The wound, injury, or disease (is not) likely to result in death or disability. "In my opinion the wound, injury, or ( did ) disease (did not) originate in the line of duty in the military service of the United States.

"In view of occupation he is 40 per cent disabled."

The Board of Review, on the same date, made an examination of the insured and concurred in the findings of the medical officer. Thereafter, until June 12, 1923, numerous physical examinations were made by surgeons, physicians and roentgenologists of the United States Public Health Service. All concluded the insured was a victim of chronic pleurisy with fibrous adhesions on the left side of his lung with a heart displacement and some found encapsulated fluid in the pleural cavity. The fibrin showed from base of lung to the fourth rib on the left side, also between the upper and lower lobes.

On June 12, 1923, a physical examination by the Veterans' Bureau disclosed that insured was suffering from active pulmonary tuberculosis materially advanced and that it sprang from an old pleurisy in the left base of the lung. The prognosis was favorable.

The insured entered the National Tuberculosis Sanitarium at Johnson, Tennessee, on July 14, 1923, and was confined there until August 25, 1925, suffering from active, advancing tuberculosis. He was discharged for out-patient relief, totally and permanently disabled. The disease continued its ravages without abatement and took his life July 4, 1927.

The insured carried water for a section crew on a railroad at Coldwater, Mississippi, from November 1, to December 22, 1919. He was not physically strong and remained away from his work on rainy days and his fellow workers accompanied him home and cut his firewood. During the spring of 1920, he worked three weeks hauling and selling firewood. During the same year he worked for three weeks as a porter in a clothing store and for about a year operated an elevator. He took vocational training as an automobile mechanic for a year at the Agricultural Industrial College in Nashville, Tennessee. The lay witnesses testified in substance that when insured came out of the army he was thin and had open places in his side that were discharging pus and that he coughed considerably and had night sweats and shortness of breath.

Two qualified physicians testified from the medical records of the Veterans' Bureau and the United States Public Health Service, that the character of the fluid drained from the insured's left pleura in 1919 was consistent with tuberculosis, although laboratory examinations failed to indicate its presence and that the army doctors might have overlooked tuberculosis because "in its very incipient stages, it is sometimes very difficult to find" and that if one has pleurisy and later breaks down with tuberculosis "we know that pleurisy was tuberculosis to begin with." They also testified that tuberculosis is the most frequent cause of pleurisy with fluid formation.

The controlling question presented on this appeal is whether the trial court erred in directing a verdict for the United States. Appellant had the burden of showing that the insured was permanently and totally disabled when the policy lapsed October 31, 1919.

It is a well-settled rule that issues of facts are to be determined by juries according to their own view, unless upon a consideration of all the evidence and every inference to be fairly or reasonably drawn therefrom, there is no substantial evidence to support the claim of the plaintiff. A case cannot be withdrawn from the jury if, in the opinion of the judge, there is a preponderance of evidence in favor of the party requesting a peremptory instruction. Goodwin v. Cincinnati Traction Company, 6 Cir., 175 F. 61; Travelers Insurance Company v. Randolph, 6 Cir., 78 F. 754.

"Juries are allowed to act upon probable and inferential as well as direct and positive proof." Story Parchment Company v. Paterson Parchment Paper Co., 282 U. S. 555, 564, 51 S.Ct. 248, 251, 75 L.Ed. 544.

The phrase "total and permanent disability" in a war risk insurance policy cannot be accurately defined. Each case must be governed by the particular facts and circumstances peculiar to it, and in considering a motion for a directed verdict, all undisputed facts and all reasonable inferences, deductions and conclusions to be drawn therefrom which are favorable to the beneficiary of the policy are to be regarded as true. Lumbra v. United States, 290 U.S. 551, 553, 54 S.Ct. 272, 78 L.Ed. 492.

The inferences to be drawn from appellant's testimony, considering it as a whole, have a reasonable tendency to show that the insured was totally and permanently disabled at the time of his discharge from the service. There is lacking in the facts the usual element found in many cases where a directed verdict has been approved.

At the time of his discharge, the insured had chronic pleurisy and was totally disabled. It had theretofore been of such severity as to render airless, compress and block a part of the pleural cavity. He had submitted to four thoracenteses to relieve his condition.

Pleurisy is a common disease and usually does not call for medical or surgical treatment. However, it is closely related to tuberculosis and in some cases the effusions in the pleura become purulent and cause a highly dangerous physical condition, the only relief being thoracentesis, and if this does not remedy the suffering, ribs are sometimes removed.

The discharge of pus from the insured's side continued until 1920 according to the testimony of the lay witnesses and on June 12, 1923, he had pulmonary tuberculosis, materially advanced, which clearly indicates it began much earlier. Diagnosis is not an exact science and is more accurate in acute than in chronic diseases. The history of the science teaches us that the sequence of symptoms first and bodily changes with physical signs later, is not invariable, for a slow change in the organs or tissues of the body may be accompanied by compensatory processes so complete as to prevent any discoverable function or impairment.

Time, which obliterates the fiction of presumption, in the case of the insured, may have confirmed the opinions of the experts who testified from the medical history that the insured was suffering from a disease at the time of his discharge which had already produced such structural damages to his body as to permanently disable him.

The testimony of experts may not be...