Nicolay v. United States

• Decision Date: 30 June 1931
• Docket Number: No. 395.,395.
• Citation: 51 F.2d 170
• Parties: NICOLAY v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

51 F.2d 170 (1931)

NICOLAY v. UNITED STATES.

No. 395.

Circuit Court of Appeals, Tenth Circuit.

June 30, 1931.

Kenaz Huffman, of Denver, Colo. (Frank E. Gove, Luke J. Kavanaugh, and Sherman A. Sutliff, all of Denver, Colo., on the brief), for appellant.

Edward S. Ragsdale, of Washington, D. C. (William Wolff Smith, Gen. Counsel, United States Veterans' Bureau, of Washington, D. C., Richard A. Toomey, Regional Atty., United States Veterans' Bureau, of Denver, Colo., Lawrence A. Lawlor, of Washington, D. C., Ralph L. Carr, U. S. Atty., of Denver, Colo., and John G. Reid, Asst. U. S. Atty., of Hugo, Colo., on the brief), for the United States.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

The appellant (plaintiff below) sued on a war risk insurance policy which had lapsed for nonpayment of premiums on May 2, 1919. His claim is that he was totally and permanently disabled on or before that date. At the conclusion of all the evidence, the court directed a verdict for the United States. The correctness of that ruling is the only question in the case. If there is no substantial evidence of total and permanent disability on or before May 2, 1919, the trial court was right; otherwise not. Woolworth Co. v. Davis (C. C. A. 10) 41 F.(2d) 342; Waddell v. Guthrie & Co. (C. C. A. 10) 45 F.(2d) 977; Larabee Flour Mills v. Carignano (C. C. A. 10) 49 F.(2d) 151, and cases cited therein.

Disregarding conflicting testimony, the plaintiff's evidence developed substantially the following facts: He enlisted in May, 1917, and went overseas in April, 1918. He suffered the exposures incident to active service both in this country and abroad. He had an attack of bronchitis in March, 1918; his cold and cough did not leave him, and he was compelled on occasions to fall out while on forced marches. He was gassed on September 26, 1918, and the next day received a shrapnel wound in the arm and was evacuated for hospital treatment. His arm remained in a cast until a day or so before his discharge on March 10, 1919. He returned to his home on a farm in Kansas, and did a little farm work that summer and fall. He was not strong, had a cough, raised mucous and blood, and his doctor suspected the existence of tuberculosis, and prescribed rest and wholesome food. His doctor testified he was not then able to do "steady, all-day, hard work." In 1920 he took vocational training for about ten months; he then attempted to look after chicken incubators, but the work was too heavy. In January, 1922, his lungs were X-rayed by Dr. Owen, an X-ray expert and a witness for plaintiff, and the findings summarized as "chronic, active tuberculosis of the left apex." Dr. Owen believed him to be then totally disabled. Following the advice of his doctors, he went to New Mexico, and in March, 1923, his lungs were again X-rayed by Dr. Owen, with a finding of "chronic, probably inactive, tuberculosis of the upper left lobe." At that time, Dr. Owen did not believe him to be permanently and totally disabled. He returned to New Mexico, and later came back to his home in Kansas. He did little or no work until 1925. In 1925 he worked at manual labor for a contractor for about eight months, but his condition was such that he was off from one-third to one-half the time. (In his statement to his succeeding employer, he says he worked for Maxwell & McBride from August 31, 1924, to August 20, 1925.) On September 2, 1925, he made written application to the Topeka Railway Company for a job as bus driver, and represented that he was in fair health and had never had a chronic disease, and specifically that he had never had consumption. He secured the job applied for, and worked for that company from September 15, 1925, to December 31, 1926. His work was irregular, running from two to seventeen hours a day, and he did not work every day. The undisputed records disclose that during those sixteen months he worked 3,626¼ hours, an average of approximately eight hours a day, including Sundays. In five of the months he worked more than 275 hours; in nine he worked more than 240 hours; in thirteen he worked more than 200 hours; and of the other three months (including the partial months at the beginning and ending of the employment) he worked 149½ hours in one, 142¼ hours in one, and 140 hours in one. There is no evidence that he was favored in this work by either his employer or his fellow employees, although he testified that he was compelled to call for relief many times, and that all during this period he ran a temperature, had pains in his chest, and a cough accompanied by spitting. During the first six months of 1927, he drove a bus between Kansas City and Topeka, but only worked about a third of the time. He was a fourteen-hour bed patient at a government hospital from July, 1927, until early in 1929. He was a filling station attendant the last half of 1929, but worked only four or five days a week; he was in California for about two months, and then returned to the government hospital, where he now is.

There is substantial evidence that he was a tubercular when he was discharged from the army. There is little doubt that from the middle of July, 1927, he has been a sick man. The question is not, however, his present condition; the question is, What was his physical condition on or before May 2, 1919? Evidence as to his condition since is pertinent, but only as it bears upon his condition while his policy was in force. The plaintiff's right to recover depends upon whether or not he was permanently and totally disabled in May, 1919; the fact that he was then in the early stages of tuberculosis is not conclusive, for we are not required to close our eyes to a fact known to most mankind, and that is that many men and women are now doing their daily tasks who have at one time been so afflicted.

Two factors must be considered, the totality of the disability and its permanence. Treasury Department Regulation 20, issued March 9, 1918, under the authority of section 13 of the War Risk Insurance Act (40 Stat. 399), defines total disability as "any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation."

This definition is couched in understandable language, and we are aided in construction by many authorities. This court has decided that, while "substantially gainful occupation" means any occupation, as contra-distinguished from the prewar occupation of the insured, Runkle v. United States (C. C. A.) 42 F.(2d) 804, it must be an occupation which the insured is by nature fitted for, Barksdale v. United States (C. C. A.) 46 F. (2d) 762. See, also, United States v. Cox (C. C. A. 5) 24 F.(2d) 944; United States v. Rasar (C. C. A. 9) 45 F.(2d) 545. It has also been held that the totality of the disability is not conclusively disproven by the fact that the insured was employed for a period after the policy lapsed. United States v. Eliasson (C. C. A. 9) 20 F.(2d) 821; United States v. Cox (C. C. A. 5) 24 F.(2d) 944; United States v. Sligh (C. C. A. 9) 31 F.(2d) 735; United States v. Acker (C. C. A. 5) 35 F.(2d) 646; Hayden v. United States (C. C. A. 9) 41 F.(2d) 614; Malavski v. United States (C. C. A. 7) 43 F.(2d) 974; United States v. Meserve (C. C. A. 9) 44 F.(2d) 549; United States v. Phillips (C. C. A. 8) 44 F.(2d) 689; Ford v. United States (C. C. A. 1) 44 F.(2d) 754; United States v. Cole (C. C. A. 6) 45 F.(2d) 339; United States v. Rasar (C. C. A. 9) 45 F.(2d) 545; United States v. Godfrey (C. C. A. 1) 47 F.(2d) 126; Carter v. United States (C. C. A. 4) 49 F.(2d) 221. Back of these authorities are two reasons: The regulation reads that it must be "impossible" to follow "continuously" any substantially gainful occupation. An insured who is able to work only spasmodically, with frequent interruptions or change of jobs made necessary by his condition, cannot be said to be able to work with substantial continuity. Again, the word "impossible" must be given a rational meaning; it cannot fairly be said that it is "possible" for an insured to work because, under the stimulus of a strong will power, it is physically possible for him to stick to a task, if the work is done at the risk of substantially aggravating his condition. United States v. Acker (C. C. A. 5) 35 F.(2d) 646; United States v. Phillips (C. C. A. 8) 44 F.(2d) 689; United States v. Cole (C. C. A. 6) 45 F.(2d) 339.

Like any other question of fact, the subsequent employment may be of such duration, and...