Harris v. United States, 3589.

• Decision Date: 01 May 1934
• Docket Number: No. 3589.,3589.
• Citation: 70 F.2d 889
• Parties: HARRIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

70 F.2d 889 (1934)

HARRIS v. UNITED STATES.

No. 3589.

Circuit Court of Appeals, Fourth Circuit.

May 1, 1934.

S. H. Sutherland, of Clintwood, Va. (Vance S. King, of Pennington Gap, Va., on the brief), for appellant.

T. X. Parsons, Asst. U. S. Atty., of Roanoke, Va. (Joseph H. Chitwood, U. S. Atty., of Roanoke, Va., and H. F. Dickensheets, of Washington, D. C., Atty., Department of Justice, on the brief), for the United States.

Before PARKER and SOPER, Circuit Judges, and COLEMAN, District Judge.

WILLIAM C. COLEMAN, District Judge.

This appeal arises out of a suit on a war risk insurance policy, brought by the plaintiff, the present appellant. It is stipulated in the case that the petition, filed by the plaintiff, alleged issuance to the plaintiff of a policy containing the usual clause of insurance against total and permanent disability as long as the policy was in effect; that the policy remained in effect from November 18, 1917, until May 1, 1918; that the plaintiff became totally and permanently disabled while the policy was in force; and that he made demand for payment under the policy, but that the same was refused by the government. It is further stipulated that the government admits all of the aforegoing allegations of the petition except that respecting plaintiff's disability while the policy was in force, which the government denies.

At the close of the plaintiff's testimony, the trial judge directed a verdict for the government, upon which judgment was duly entered and plaintiff has appealed. This directed verdict forms the basis of the principal assignment of error. There are three other assignments of error, one of which, however, has been abandoned. The remaining two relate to alleged errors in the rulings of the trial judge with respect to the admissibility of certain evidence, to wit: (1) That the court erred in refusing to allow a witness of the plaintiff, a clerk of the examining doctor at the time the plaintiff was discharged from the Army, to testify as to what the doctor said during a physical examination of the plaintiff covering his, the doctor's opinion as to plaintiff's physical condition; and (2) that the court erred in refusing to allow a physician, called on behalf of the plaintiff, who had treated him from the time of his discharge from the Army, to express an opinion as to the ability of the plaintiff to "follow continuously any substantially gainful occupation."

We will dispose of the two last-named questions relating to the admissibility of evidence before taking up the major question in the case, namely, whether or not there was error in directing a verdict for the government.

With respect to the first of the assignments of error relating to the admissibility of evidence, we find that it is without merit because the testimony sought to be introduced was clearly hearsay, and may not properly be brought within any theory of res gestae.

As to the other assignment of error relating to the medical testimony, that also is without merit, because had the physician been permitted to answer the question, this would have been tantamount to permitting him to settle matters of law for himself and by applying the same to the facts within his knowledge, to try the very questions that the jury had been impaneled to try. In Prevette v. United States, 68 F.(2d) 112, and United States v. Sauls, 65 F.(2d) 886, this court held that similar testimony should be excluded.

Coming now to the major question in the case, namely, did the court err in directing a verdict for the government, we must apply the firmly established rule that the evidence must be considered in its aspect most favorable to the plaintiff; that the weight of the testimony is always for the jury to determine; and that therefore a trial judge should not direct a verdict unless the evidence is so conclusive that were a verdict rendered for the plaintiff, the court, in the exercise of a sound judicial discretion, would be compelled to set it aside. Gunning v. Cooley, 281 U. S. 90, 50 S. Ct. 231, 74 L. Ed. 720; Lumbra v. United States, 290 U. S. 551, 54 S. Ct. 272, 78 L. Ed. 492.

While not conclusive, at the outset we cannot lose sight of the great lapse of time that occurred between the last date when the policy of insurance was in effect, namely, May 1, 1918, when the plaintiff claims he was permanently and totally disabled, and the date when the suit was filed, namely, May 8, 1933, or approximately fifteen years. As was said in the case of Lumbra v. United States, supra, at...