Eggen v. United States

• Citation: 58 F.2d 616
• Decision Date: 30 April 1932
• Docket Number: No. 9343.,9343.
• Parties: EGGEN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

58 F.2d 616 (1932)

EGGEN v. UNITED STATES.

No. 9343.

Circuit Court of Appeals, Eighth Circuit.

April 30, 1932.

James H. Hall, of Marshall, Minn., and A. R. English, of Tracy, Minn. (Hall & Catlin, of Marshall, Minn., on the brief), for appellant.

Joseph W. Finley, Asst. U. S. Atty., of St. Paul, Minn. (Lewis L. Drill, U. S. Atty., of St. Paul, Minn., and John H. Fraine, Insurance Atty., Veterans' Administration, and R. M. Uehren, Asst. Regional Atty., U. S. Veterans' Administration, both of Minneapolis, Minn., on the brief), for the United States.

Before VAN VALKENBURGH and SANBORN, Circuit Judges, and DAVIS, District Judge.

SANBORN, Circuit Judge.

This is an appeal from a judgment in favor of the Government in a war risk insurance case. Emil Eggen was the insured. He was in the army from May 19, 1917, to August 24, 1919, saw active service, but received no wounds. His enlistment record shows his condition to have been good at the time of his discharge. His own declaration, the certificate of his commanding officer and that of the medical officer who examined him are to the effect that he then had no disease or disability. He paid no premiums upon his policy after his separation from the service, and, by its terms, the policy lapsed for nonpayment of premiums on October 1, 1919. The insured died March 6, 1926, at the Veterans' Hospital at Ft. Snelling, Minn., from tuberculosis. The appellant is his mother, the beneficiary named in the policy and the special administratrix of his estate. She made a claim under the policy, which was rejected, and she then brought this suit against the government, claiming that her son was, prior to October 1, 1919, a totally and permanently disabled man, and that the policy had therefore matured. This the government denied.

Upon the trial of the case before a jury, at the close of the evidence, the government moved for a directed verdict on the ground of the insufficiency of the appellant's evidence. The motion was granted, and this appeal followed.

It is not necessary to set forth the evidence in detail. There was testimony that the insured was examined by a physician in September of 1919, and that he then had symptoms indicating incipient pulmonary tuberculosis; that he was advised to go to a sanitarium or to the Veterans' Hospital in order that he might be cured; that he did not go to the hospital or take any treatment, but worked intermittently on a farm, in the woods, for a wrecking company in Minneapolis, and as a section hand, the periods during which he was employed being short and the total employment aggregating about fifteen months. The testimony of the appellant's lay witnesses tended to show that, upon the insured's return from the army on August 25, 1919, he was thin, pale, and ill, that he coughed and threw up, was short-winded, tired easily, had night sweats, and was unable to work regularly or effectively, and that these conditions continued. He was examined by a doctor in 1925, and was found at that time to have tuberculosis in an advanced stage. He was sent to the Veterans' Hospital on February 19, 1926, and died on March 6, 1926.

A policy of war risk insurance was a contract of insurance between the government and the insured. It was not a gratuity nor an arrangement for a pension. The contingencies insured against were death and total permanent disability. If a policy lapsed, for nonpayment of premiums, before death or total permanent disability occurred, there could be no recovery under the policy. If either of the contingencies insured against occurred during the life of the policy, there could be a recovery.

Total disability is any impairment of mind or body which renders it impossible for the insured to engage continuously in any substantially gainful occupation, and total disability is permanent if it is founded upon conditions which make it reasonably certain that it will continue throughout life. A total disability which has not become permanent before the lapse of a policy does not mature it, nor does a permanent disability which has not become total. Some of the recent cases in which these policies and their terms are discussed are Blair v. United States (C. C. A. 8) 47 F.(2d) 109; McNally v. United States (C. C. A. 8) 52 F.(2d) 440; United States v. Le Due (C. C. A. 8) 48 F. (2d) 789; United States v. Perry (C. C. A. 8) 55 F.(2d) 819; United States v. McGill (C. C. A. 8) 56 F.(2d) 522; United States v. McLaughlin (C. C. A. 8) 53 F.(2d) 450; Green v. United States (C. C. A. 8) 57 F. (2d) 9; Nicolay v. United States (C. C. A. 10) 51 F.(2d) 170; Hirt v. United States (C. C. A. 10) 56 F.(2d) 80; United States v. Hairston (C. C. A. 8) 55 F.(2d) 825.

The decisions are all to the effect that, in order to recover upon a policy of war risk insurance, the plaintiff must sustain the burden of proving that the insured was both totally and permanently disabled prior to the lapse of the policy. There has been no substantial difference of opinion as to the law governing these policies, but there has not been entire uniformity in the decisions with reference to the nature of the evidence which will make a prima facie case of total and permanent disability. Because of this, it has been difficult for the trial courts to pass upon the question of the sufficiency of the evidence with any assurance of the correctness of their conclusions. The results of the appeals in such cases in this court are evidence of that situation.

In most cases the insureds lapsed their policies when they left the service in 1919. They did not consider themselves then totally and permanently disabled. If they had, they would have made claims under their policies, and, if there had been any substantial doubt in their minds as to whether they were not so disabled, they would have paid premiums in order to avoid any controversy over their right to collect upon the policies. There were, however, unquestionably, men discharged from the army who had disabilities which were total and permanent, but which were not recognized as such by them or by the government at the time. It is perhaps safe to say, however, that it is not usual for a person to become totally and permanently disabled, even under a liberal construction of those terms, without soon having some intimation of the fact. To satisfactorily prove or disprove that the conditions upon which any claimed total disability was founded twelve or thirteen years ago were such as to render it reasonably certain that at that time the disability would continue throughout life, presents some difficulties. The long delays in bringing suit and the unsatisfactory character of the evidence in many of these cases has added to the difficulties of the courts in passing upon the merits of these claims.

The situation illustrated by this case is frequently presented. There is often evidence sufficient to justify a finding that the insured, while his policy was in force, was totally disabled as the result of some disease which is, as a matter of common knowledge, in the great majority of cases curable. Such a disability would be classed as total and temporary during the life of the policy. Years after the lapse of the policy, the insured dies or his total disability becomes a permanent one from a continuation of the same disease. The subsequent death or subsequent permanence of the disability does not always create an inference that the disability was permanent before the lapse of the policy. If it did, then whenever in one of these cases there was evidence of total disability from a certain disease before lapse, and death or total and permanent disability from a continuation of the same disease after lapse, the case would be for the jury, regardless of what the disease may have been. If, at the time of the lapse of the policy, all the conditions upon which the total disability was founded then failed to make it reasonably certain that the disability would continue throughout the lifetime of the insured, the policy did not mature. If it did not mature, it lapsed, and, if subsequently and as the disease progressed, other conditions arose which made it reasonably certain that the insured could never recover, those later conditions cannot be used to mature a policy which had ceased to exist. A man with influenza, mumps, measles, whooping cough, or scarlet fever may...