Galloway v. United States, No. 553

• Court: United States Supreme Court
• Writing for the Court: RUTLEDGE
• Citation: 87 L.Ed. 1458,319 U.S. 372,63 S.Ct. 1077
• Parties: GALLOWAY v. UNITED STATES
• Docket Number: No. 553
• Decision Date: 24 May 1943

319 U.S. 372 63 S.Ct. 1077 87 L.Ed. 1458 GALLOWAY

v.

UNITED STATES.

No. 553. Argued March 9, 1943. Decided May 24, 1943. Rehearing Denied June 21, 1943.

See 320 U.S. 214, 63 S.Ct. 1443, 87 L.Ed. —-.

Mr. Warren E. Miller, of Washington, D.C., and Alvin Gerlack, of San Francisco, Cal., for petitioner.

Mr. Lester P. Schoene, of Washington, D.C., for respondent.

Mr. Justice RUTLEDGE delivered the opinion of the Court.

Petitioner seeks benefits for total and permanent disability by reason of insanity he claims existed May 31, 1919. On that day his policy of yearly renewable term insurance lapsed for nonpayment of premium.¹

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The suit was filed June 15, 1938. At the close of all the evidence the District Court granted the Government's motion for a directed verdict. Judgment was entered accordingly. The Circuit Court of Appeals affirmed. 9 Cir., 130 F.2d 467. Both courts held the evidence legally insufficient to sustain a verdict for petitioner. He says this was erroneous and, in effect, deprived him of trial by jury, contrary to the Seventh Amendment.

The constitutional argument, as petitioner has made it, does not challenge generally the power of federal courts to withhold or withdraw from the jury cases in which the claimant puts forward insufficient evidence to support a verdict.² The contention is merely that his case as made was substantial, the courts' decisions to the contrary were wrong, and therefore their effect has been to deprive him of a jury trial. Petitioner relies particularly upon Halliday v. United States, 315 U.S. 94, 62 S.Ct. 438, 86 L.Ed. 711, and Berry v. United States, 312 U.S. 450, 61 S.Ct. 637, 85 L.Ed. 945, citing also Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720. These cases and others relied upon are distinguishable upon the facts, as will appear. Upon the record and the issues as the parties have made them, the only question is whether the evidence was sufficient to sustain a verdict for petitioner. On that basis, we think the judgments must be affirmed.

I.

Certain facts are undisputed. Petitioner worked as a longshoreman in Philadelphia and elsewhere prior to en-

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listment in the Army November 1, 1917. ³ He became a cook in a machine gun battalion. His unit arrived in France in April, 1918. He served actively until September 24. From then to the following January he was in a hospital with influenza. He then returned to active duty. He came back to the United States, and received honorable discharge April 29, 1919. He enlisted in the Navy January 15, 1920, and was discharged for bad conduct in July. The following December he again enlisted in the Army and served until May, 1922, when he deserted. Thereafter he was carried on the Army records as a deserter.

In 1930 began a series of medical examinations by Veterans' Bureau physicians. On May 19 that year his condition was diagnosed as 'Moron, low grade; observation, dementia praecox, simple type.' In November, 1931, further examination gave the diagnosis, 'Psychosis with other diseases or conditions (organic disease of the central nervous system—type undetermined).' In July, 1934, still another examination was made, with diagnosis: 'Psychosis manic and depressive insanity incompetent; hypertension, moderate; otitis media, chronic, left; varicose veins left, mild; abscessed teeth roots; myocarditis, mild.'

Petitioner's wife, the nominal party in this suit, was appointed guardian of his person and estate in February, 1932. Claim for insurance benefits was made in June, 1934, and was finally denied by the Board of Veterans' Appeals in January, 1936. This suit followed two and a half years later.

Petitioner concededly is now totally and permanently disabled by reason of insanity and has been for some time prior to institution of this suit. It is conceded also that

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he was sound in mind and body until he arrived in France in April, 1918.

The theory of his case is that the strain of active service abroad brought on an immediate change, which was the beginning of a mental breakdown that has grown worse continuously through all the later years. Essential in this is the view it had become a total and permanent disability not later than May 31, 1919.

The evidence to support this theory falls naturally into three periods, namely, that prior to 1923; the interval from then to 1930; and that following 1930. It consists in proof of incidents occurring in France to show the beginnings of change; testimony of changed appearance and behavior in the years immediately following petitioner's return to the United States as compared with those prior to his departure; the medical evidence of insanity accumulated in the years following 1930; and finally the evidence of a physician, given largely as medical opinion, which seeks to tie all the other evidence together as foundation for the conclusion, expressed as of 1941, that petitioner's disability was total and permanent as of a time not later than May of 1919.

Documentary exhibits included military, naval and Veterans' Bureau records. Testimony was given by deposition or at the trial chiefly by five witnesses. One, O'Neill, was a fellow worker and friend from boyhood; two, Wells and Tanikawa, served with petitioner overseas; Lt. Col. Albert K. Mathews, who was an Army chaplain, observed him or another person of the same name at an Army hospital in California during early 1920; and Dr. Wilder, a physician, examined him shortly before the trial and supplied the only expert testimony in his behalf. The petitioner also put into evidence the depositions of Commander Platt and Lt. Col. James E. Matthews, his superior officers in the Navy and the Army, respectively, during 1920-22.

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What happened in France during 1918-19 is shown chiefly by Wells and Tanikawa. Wells testified to an incident at Aisonville, where the unit was billeted shortly after reaching France and before going into action. Late at night petitioner created a disturbance, 'hollering, screeching, swearing. * * * The men poured out from the whole section.' Wells did not see the incident, but heard petitioner swearing at his superior officers and saw 'the result, a black eye for Lt. Warner.' However, he did not see 'who gave it to him.'⁴ Wells personally observed no infraction of discipline except this incident, and did not know what brought it on. Petitioner's physical appearance was good, he 'carried on his duties as a cook all right,' and the witness did not see him after June 1, except for about three days in July when he observed petitioner several times at work feeding stragglers.

Tanikawa, Hawaiian-born citizen, served with petitioner from the latter's enlistment until September, 1918, when Galloway was hospitalized, although the witness thought they had fought together and petitioner was 'acting queer' at the Battle of the Argonne in October. At Camp Greene, North Carolina, petitioner was 'just a regular soldier, very normal, * * * pretty neat.' After reaching France 'he was getting nervous * * *, kind of irritable, always picking a fight with other soldier.' This began at Aisonville. Tanikawa saw Galloway in jail, apparently before June. It is not clear whether these are references to the incident Wells described.

Tanikawa described another incident in June 'when we were on the Marne,' the Germans 'were on the other side and we were on this side.' It was a new front, without trenches. The witness and petitioner were on guard duty with others. Tanikawa understood the Germans

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were getting ready for a big drive. 'One night he (petitioner) screamed. He said, 'The Germans are coming' and we all gagged him.' There was no shooting, the Germans were not coming, and there was nothing to lead the witness to believe they were. Petitioner was court martialed for the matter, but Tanikawa did not know 'what they did with him.' He did not talk with Galloway that night, because 'he was out of his mind' and appeared insane. Tanikawa did not know when petitioner left the battalion or what happened to him after (as the witness put it) the Argonne fight, but heard he went to the hospital, 'just dressing station I guess.' The witness next saw Galloway in 1936, at a disabled veterans' post meeting in Sacramento, California. Petitioner then 'looked to me like he wasn't all there. Insane. About the same * * * as compared to the way he acted in France, particularly when they gagged him * * *.'

O'Neill was 'born and raised with' petitioner, worked with him as a longshoreman, and knew him 'from when he come out of the army for seven years, * * * I would say five or six years.' When petitioner returned in April or May, 1919, 'he was a wreck compared to what he was when he went away. The fellow's mind was evidently unbalanced.' Symptoms specified were withdrawing to himself; crying spells; alternate periods of normal behavior and nonsensical talk; expression of fears that good friends wanted 'to beat him up'; spitting blood and remarking about it in vulgar terms. Once petitioner said, 'G—d—it, I must be a Doctor Jekyll and Mr. Hyde.'

O'Neill testified these symptoms and this condition continued practically the same for about five years. In his opinion petitioner was 'competent at times and others was incompetent.' The intervals might be 'a couple of days, a couple of months.' In his normal periods Galloway 'would be his old self * * * absolutely O.K.'

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O'Neill was definite in recalling petitioner's condition and having seen him frequently in 1919, chiefly however, and briefly, on the street during lunch hour. He was not sure Galloway was working and was 'surprised he got in the Navy, I think in the Navy or in the Government service.'

O'Neill maintained he saw petitioner 'right on from that (1920) at times.' But his recollection of dates, number of opportunities for observation, and concrete events was wholly indefinite. He would fix no...