Noble v. United States

• Decision Date: 09 August 1938
• Docket Number: No. 11073.,11073.
• Citation: 98 F.2d 441
• Parties: NOBLE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

98 F.2d 441 (1938)

NOBLE v. UNITED STATES.

No. 11073.

Circuit Court of Appeals, Eighth Circuit.

August 9, 1938.

Frederick H. Wagener, of Lincoln, Neb., and Carl T. Self, of Omaha, Neb., for appellant.

Kenneth E. Spencer, Atty., Department of Justice, of Washington, D. C. (Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Edward G. Dunn, U. S. Atty., of Mason City, Iowa, Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and Young M. Smith, Atty., Department of Justice, of Washington, D. C., on the brief), for the United States.

Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This is a war risk insurance case. The pleadings, which are for the most part in conventional form, disclose that appellant, who was plaintiff below, claimed that on or about April 26, 1918, while in military service, he was struck on the head by a falling beam and that due to that injury he became totally and permanently disabled. By an amended petition, it was alleged that plaintiff received total permanent disability and injuries while the insurance policy was in effect, "due to and by reason of his service in the United States Army and on account of the heavy strain and exposure and contracted disease while in the service and among other injuries the plaintiff was struck on the head by a falling beam." Plaintiff's testimony was to the effect that on the 26th of April, 1918, one end of a steel beam struck him on the head. Referring to this incident, he testified:

"I laid there about fifteen minutes and one of the boys from the truck came and shortly an ambulance came and picked us up and took us to the first aid station where we laid on a cot without medicine or examinations until the next morning. I felt numb with no feeling. It was impossible to get up. Could move my arms and feet very, very small. I had no examination or treatment there and I got up and started to go with the rest of them and we got to a large gully, valley or something and that was the last I remember, I became unconscious. The next I remember after about three days. I was on a depot platform at Chateauroux and I felt just numb. I was taken to a base hospital at Chateauroux, France, and I was there about two weeks and did not receive any treatment. I was then transferred on a stretcher by truck train to Mon Pont, France. All this time I had been speechless from the time I went unconscious."

He remained there until May 18. Then, he said, he was more normal, but he would stagger as if he were drunk. Plaintiff testified quite fully with reference to his subsequent condition and his hospital experiences.

At the close of all the testimony, the Government moved for a directed verdict, which was denied, and thereupon the plaintiff moved for a directed verdict, which was likewise denied. The case was submitted to the jury on instructions to which plaintiff took no exceptions. The jury returned a verdict in favor of defendant, upon which judgment of dismissal was entered, and this appeal followed.

The sole question presented is whether or not the court erred in overruling plaintiff's motion for a directed verdict, and in submitting the case to the jury. In considering this question it will be necessary to refer to the testimony, not for the purpose of weighing it, but for the purpose of determining whether there was substantial evidence to sustain the verdict in favor of the defendant. In considering the evidence for that purpose, we must assume that the jury accepted as true the testimony in favor of defendant, and we must accept it as true, and we must allow the defendant such reasonable, favorable inferences as may be drawn therefrom. If the evidence so considered was such that reasonable men might reach different conclusions, then the case was one for the jury. Illinois Power & Light Corp. v. Hurley, 8 Cir., 49 F.2d 681; Chicago, M., St. P. & P. Ry. Co. v. Linehan, 8 Cir., 66 F.2d 373; Chicago, B. & Q. R. Co. v. Kelley, 8 Cir., 74 F.2d 80; Kladivo v. Melberg, 210 Iowa 306, 227 N.W. 833; Wilkinson v. National Life Ass'n, 203 Iowa 960, 211 N. W. 238.

The burden of proof was upon the plaintiff to establish that during the life of his policy he became permanently totally disabled.

The argument of appellant is in effect that the testimony was such as to have sustained a verdict in his favor. In overruling defendant's motion for a directed verdict, the lower court so held, but it does not follow that the evidence was of such a character as to compel such a verdict. The jury found on the evidence submitted that the plaintiff had not become totally and permanently disabled during the life of his insurance contract.

First, we note in passing, that while plaintiff claims that he became permanently and totally disabled in April, 1918, this action was not brought until September, 1931, more than thirteen years after the accrual of his claim. This delay was significant. As said by the Supreme Court in Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 276, 78 L.Ed. 492, "And in the absence of clear and satisfactory evidence explaining, excusing, or justifying it, petitioner's long delay before bringing suit is to be taken as strong evidence that he was not totally and permanently disabled before the policy lapsed."

On this same question, the Supreme Court, in United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617, among other things, said (page 276): "The fact that, notwithstanding his need of money for the support of his family and himself, he failed for nearly nine years to sue for the insurance money now claimed strongly suggests that he had not suffered total permanent disability covered by the policy."

Plaintiff's only explanation for his long delay in making claim for this insurance is that he did not realize "that it was a policy that I could draw on,...