Ford v. United States

• Citation: 44 F.2d 754
• Decision Date: 08 November 1930
• Docket Number: No. 2454.,2454.
• Parties: FORD v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

44 F.2d 754 (1930)

FORD v. UNITED STATES.

No. 2454.

Circuit Court of Appeals, First Circuit.

November 8, 1930.

Dwight L. Allison, of Boston, Mass., for appellant.

John Laurence Hurley, Sp. Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., and John J. Walsh, Jr., Asst. U. S. Atty., both of Boston, Mass., James T. Brady, Acting Gen. Counsel, U. S. Veterans' Bureau, of Washington, D. C., William J. Hession, Atty., U. S. Veterans' Bureau, of Boston, Mass., and Bayless L. Guffy, Atty., U. S. Veterans' Bureau, of Washington, D. C., on the brief), for the United States.

Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.

ANDERSON, Circuit Judge.

This is a suit to recover under a war risk term insurance for $5,000, which lapsed on February 28, 1919. The appellant enlisted as a seaman in the United States Navy on June 2, 1917, and was discharged on January 19, 1919. His contention is that, while the insurance was in force, he became permanently and totally disabled as a result of disease or disability, and has ever since been permanently and totally disabled. He prays for judgment in monthly payments of $28.75 from February 28, 1919, to the date of filing of his petition.

At the close of the plaintiff's case the court granted the defendant's motion to order a verdict for the United States. The sole question presented on this appeal is whether the plaintiff was entitled to go to the jury.

Under section 5 of the World War Veterans' Act, 43 Stat. 608, 38 USCA § 426, and section 13 of the War Risk Insurance Act of Act Oct. 6, 1917, 40 Stat. 398, as amended by Act May 29, 1918, § 1, 40 Stat. 555, the usual authority is vested in the Director and the Secretary of the Treasury to make regulations not inconsistent with the act appropriate to carry out its purposes. Under this authority, Regulation No. 11 was issued defining "total and permanent disability" 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."

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.

It is well settled that, on such a question as is here presented, the plaintiff is entitled to the most favorable construction that a jury might be warranted in putting on the evidence. Heisson v. Dickinson (C. C. A.) 35 F.(2d) 270, and cases cited; Bangor & Aroostook R. R. v. Jones (C. C. A.) 36 F. (2d) 886; Gray, Administratrix, v. Davis, Director General of R. R. (C. C. A.) 294 F. 57.

And the act itself is to be liberally construed in favor of such claimants. In White v. United States, 270 U. S. 175, 180, 46 S. Ct. 274, 275, 70 L. Ed. 530, Mr. Justice Holmes said of such contracts: "The insurance was a contract, to be sure, for which a premium was paid, but it was not one entered into by the United States for gain. All soldiers were given a right to it and the relation of the Government to them if not paternal was at least avuncular. It was a relation of benevolence established by the Government at considerable cost to itself for the soldier's good."

We turn now to summarize the evidence in the appellant's behalf:

He testified that after his enlistment in 1917 he was at the Hampton Roads Naval Air Station, doing beach duty, "leading the planes in and from the water and carrying the pilots"; that in this work it was necessary for him to go into the water in order to carry the pilots from the beach and place them in the planes; that while doing this work he was taken ill, and was shipped to the Naval Base Hospital (probably) in November, 1918; that he was there about two months, and also had thirteen sick leaves while in the service;...