Glick v. United States, 6130.

• Decision Date: 10 December 1937
• Docket Number: No. 6130.,6130.
• Citation: 93 F.2d 953
• Parties: GLICK v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

93 F.2d 953 (1937)

GLICK v. UNITED STATES.

No. 6130.

Circuit Court of Appeals, Seventh Circuit.

December 10, 1937.

Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett and Fendall Marbury, Sp. Assts. to Atty. Gen., and Arthur Roe, U. S. Atty., of Danville, Ill., for the United States.

Samuel V. Jinkins, of Danville, Ill., and Eugene Bland, of Shelbyville, Ill., for appellee.

Before EVANS, SPARKS, and MAJOR, Circuit Judges.

Action on war risk insurance policy. Jury waived. Findings and judgment for plaintiff.

EVANS, Circuit Judge.

Two questions are presented by this appeal. One deals with a fact inquiry, the other is one of law. Does the evidence support the finding that plaintiff was totally and permanently disabled either in April, 1919, or in May, 1922? Is there a valid bill of exceptions?

Plaintiff entered the service, April 30, 1918 and was honorably discharged April 15, 1919. This action was begun June 25, 1932. He paid no premiums after his discharge. During service, premiums were deducted from his pay.

In his original complaint he alleged that he became totally and permanently disabled November 3, 1918, as a result of the following ailments: "Gassed, pulmonary tuberculosis, asthma, pleurisy, lung trouble, heart trouble, endocarditis, myocarditis, shortness of breath, nervousness, stomach trouble, intestinal trouble, ear trouble, trench feet, varicose veins, general weakness, exhaustion and general disability, and other diseases unknown to the Plaintiff."

His claim was disallowed by the United States Veterans' Bureau. After this action was begun, plaintiff amended his complaint and alleged that the insurance remained in force until May 1, 1922, by reason of the fact that compensation was due him from the Government in an amount sufficient to keep the insurance in force until May 1, 1922; that he became totally and permanently disabled on the first day of April, 1922.

Defendant objected to the amendment on the ground that it involved a claim never presented to the United States Veterans' Bureau. Only a total and permanent disability as of November 3, 1918, was before the Bureau. The objection was overruled and a trial by the court, without a jury, resulted in favor of plaintiff. Defendant appealed.

Plaintiff questions the bill of exceptions because not settled in time. The court granted extensions of time and these orders were made a part of the record, but they are not incorporated in the bill of exceptions; hence plaintiff's urge.

In other words, the appeal was taken April 4, 1936. The bill of exceptions was settled on January 2, 1937. Several extensions of time within which to settle the bill of exceptions were made by the court, but they were not incorporated in the bill of exceptions.

The clerk has certified all the orders extending the time as demanded by the praecipe. Defendant argues that these orders are part of the common law record. Plaintiff denies it. Thus is the issue raised. No objection was made to the court's approving the bill of exceptions or to the failure of defendant to incorporate orders extending time therein.

On this question we have an interesting and unique situation arising out of the granting in one case, and the refusal in another to grant certiorari by the Supreme Court. Ordinarily the refusal to grant certiorari creates no inference. Atlantic Coast Line R. Co. v. Powe, 283 U.S. 401, 51 S.Ct. 498, 75 L.Ed 1142. Here, however, the facts are distinguishing. Two Circuit Courts of Appeals (La Grotta v. United States, 77 F.2d 673, 103 A.L.R. 527, Eighth Circuit and United States v. Payne, 72 F. 2d 593, Ninth Circuit) reached opposite conclusions with respect to the necessity of making an order extending the time to present the bill of exceptions a part of the said bill. They were announced about the same time. The Supreme Court granted certiorari in Payne v. United States (Ninth Circuit case), 295 U.S. 722, 55 S. Ct. 642, 79 L.Ed. 1675, where the court refused to recognize the validity of the bill of exceptions. It refused certiorari in La Grotta v. United States (C.C.A.) 77 F.2d 673, Eighth Circuit case (Quigley v. U. S., 296 U.S. 629, 56 S.Ct. 152, 80 L.Ed. 447), where the court recognized the validity of the bill of exceptions notwithstanding the orders extending the time for its settlement were not made a part of the bill of exceptions.

Unfortunately the question, which was on its road to final determination, remains unanswered by the Supreme Court because the parties to the suit where certiorari was granted settled their controversy and caused the certiorari to be dismissed (Payne v. U. S., 296 U.S. 659, 56 S.Ct. 87, 80 L.Ed. 469). An interesting discussion on settling bills of exceptions in criminal cases appears in the opinion in Forte v. U. S., 58 S.Ct. 180, 82 L.Ed. ___, announced December 6, 1937.

We may accept without question and without the citation of authorities a few basic propositions of law. Without a valid bill of exceptions we cannot review the finding on the issue of fact which is at the bottom of the judgment from which this appeal was taken. A court is not authorized to settle a bill of exceptions after the term and after the time fixed by its order have expired. Equally clear is the authority of the court to extend the time for settling the bill of exceptions if the court's order is made within the time fixed by its first order. Additional extensions, if seasonably applied for, may also be granted by the court during the life of any previous order.

In the case at bar the orders which were entered show on their face they were all properly made. The court was, of necessity, aware of the written orders it had entered. Its authority to settle the bill of exceptions was therefore clear. The existence of that authority was not in fact dependent upon the inclusion of the order in the bill of exceptions. If the court's authority were gone, had expired, the location of a void order in the bill of exceptions or in the record would not supply that authority. Likewise, if the court at the time it signed the bill of exceptions had the authority to settle it, it was not defeated by failure to incorporate its orders extending time within the bill of exceptions.

In other words, authority or absence of authority in the trial court does not in any way depend upon an appeal being taken.

Counsel's attack is not, or at least cannot be, successfully directed to the court's authority. If he is to prevail, his attack must be predicated on the failure of the bill of exceptions to disclose the authority of the court to settle the bill of exceptions at a date after the term has expired.

In the certificate to the bill of exceptions, the District Judge says:

"And forasmuch as the matters above set forth do not fully appear of record the defendant tenders this its Bill of Exceptions * * *."

Defendant's counsel argues that the orders in question do fully appear of record and therefore were not properly included in a bill of exceptions. They were properly included by the clerk in his return because of the praecipe.

With defendant's position, we agree. The orders were a part of the common law record, and, as such, were properly certified to this court by the clerk. It was not necessary to make them a part of the bill of exceptions. This conclusion is strengthened by the action of the Supreme Court in granting certiorari in the Payne Case and refusing it in the La Grotta Case.

Coming to the merits of the case we find little justification for an extended recital of the evidence, yet are unable to dispose of the single fact issue with satisfactory brevity.

The words "total and permanent disability" have a well understood meaning. They have been widely construed and applied in insurance law.¹

The following facts carry their own persuasive implications. Plaintiff was discharged April 15, 1919, about one year after his enlistment. He brought this action thirteen years later. In his original declaration he states he was permanently and totally disabled in November, 1918. Some three years later he made sworn complaint that he became totally and permanently disabled, April 1, 1922.

He made no claim of disability of any kind when he was discharged. Nor did anyone who knew him or who was interested in him assert the existence of a disability.

His assertion of permanent and total disability thirteen years later was made only after the Government had discontinued his "adjusted compensation" which had been paid in varying amounts for years. Two years after he filed this suit he made a written statement to the Government investigator wherein he stated that he "drew compensation for disability up to one year ago when same was suspended." From his testimony and this statement it appears that he received his first compensation at the rate of $8 per month about a year after his discharge; this was later increased to $42.30 a month and after several years his rating was reduced to $12.00, which amount was still later increased to $18.00 per month. When the compensation ceased he sought legal assistance and met one J. who contacted him with an attorney into whose hand he placed his claim and to whom he gave a power of attorney. Application was also made for him to litigate as a pauper.

His claim was rejected. It was then that he stated,

"I have made application for compensation and if I am allowed anything like a liberal compensation I would be willing to withdraw my suit for collection of my war risk insurance. I do not have any idea I will obtain a judgment as I do not claim to be totally and permanently disabled as I have worked when I was able to obtain work since my discharge. I will decide about dismissing my suit for the insurance when my application for compensation has been acted upon."

Although he could read, and he signed this statement, he denied knowledge of the contents of the paper he signed.

When he entered...