Pence v. United States

• Decision Date: 04 August 1941
• Docket Number: No. 7516.,7516.
• Citation: 121 F.2d 804
• Parties: PENCE v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

121 F.2d 804 (1941)

PENCE v. UNITED STATES.

No. 7516.

Circuit Court of Appeals, Seventh Circuit.

July 2, 1941.

Rehearing Denied August 4, 1941.

J. Albert Woll, U. S. Atty., of Chicago, Ill., Keith L. Seegmiller, of Washington, D. C., and Julius C. Martin, Asst. Atty. Gen., for appellant.

Wm. B. Collins, of Milwaukee, Wis., for appellee.

Before SPARKS and KERNER, Circuit Judges, and LINDLEY, District Judge.

SPARKS, Circuit Judge.

The Government appeals from a judgment in favor of the beneficiary of a policy of war risk insurance, contending that reinstatement of the policy after lapse for nonpayment of premiums was obtained by fraud, hence denying liability on it. The case was tried to a jury which rendered a general verdict in favor of appellee.

Appellee has filed her motion to dismiss the appeal on the grounds that no statement of points was filed with the clerk of the District Court for inclusion with the record, pursuant to Rule 9 of the court, that it raises no substantial question for consideration by this court, is frivolous and was taken only for purposes of delay. She also asks that a penalty be imposed upon appellant for having taken the appeal for purposes of delay.

With respect to the absence of the statement of points from the original record, although it was included later by leave of this court, we have recently held that failure of an appellant to comply with Rule 75(d), 28 U.S.C.A. following section 723c, pertaining to the inclusion of a statement of points is not jurisdictional and does not necessitate dismissal of the appeal. See Adams et al. v. New York, Chicago & St. Louis R. Co., 7 Cir., 121 F.2d 808, decided by this court May 20, and June 24, 1941. Inasmuch as we are of the opinion that the appeal presents a serious question, we cannot agree with appellee that it should be dismissed for frivolity. Under all the facts here presented we think the motion to dismiss should be, and it is denied.

The principal questions presented by the appeal are whether the court erred in failing to grant appellant's motion for a directed verdict or for judgment notwithstanding the verdict because the evidence established that the policy sued upon was reinstated by fraud; and whether the court erred in denying appellant's motion for a mistrial on the ground of prejudice arising out of a newspaper report by which some of the jurors learned of certain proceedings had out of their presence.

The insured, Dr. Pence, an eye, ear, nose and throat specialist, entered the military service as a medical officer in August, 1918. He returned to private practice after his honorable discharge in January, 1919. In December, 1924, he applied for and passed a civil service examination for appointment to the medical service, and in March, 1925, he returned to Government service, being employed thereafter in various Government hospitals.

While in the military service, Pence obtained a policy of war risk insurance in the amount of $10,000 which he permitted to lapse for non-payment of premiums in February, 1920. In June, 1927, he applied for reinstatement of the policy, answering the following questions as indicated:

5. "Are you now in as good health as you were at the due date of the premium default? Yes."

7. "Have you been ill, or contracted any disease, or suffered any injury, or been prevented by reason of ill health from attending your usual occupation, or consulted a physician in regard to your health, since lapse of this insurance? No."

In connection with his medical examination he answered the following question in the negative as to each and every part:

11. "Have you ever been treated for any disease of brain or nerves No, throat or lungs No, heart or blood vessels No, stomach, liver, intestines No, kidney or bladder No, genito urinary organs No, skin No, glands No, ear or eye No, bones No."

The medical examiner recommended acceptance of the risk as a first-class one, and the policy was, accordingly, reinstated as of July 1, 1927. The insured died on September 21, 1934. He had been at home for two days, September 17 and 18, with a cold, but had not been attended by a physician. He worked all day before his death, and was found dead in bed the morning following. His death certificate, signed by the physician in charge of the hospital where he was employed, but who had not attended him, gave as the cause, "coronary thrombosis, sudden death, myocarditis chronic, chronic sinusitis, nasal accessory sinusitis, with acute exacerbation." There was no autopsy performed.

In August, 1928, the insured filed application for compensation, claiming that he was disabled because of "Sinusitis and Ethmoiditis Chr. and Chr. Atrophic Rhinitis and partial loss of smell. Myocarditis" caused by "Flu in service." In May, 1929, he filed application for retirement, again reciting his service-incurred disabilities from chronic ethmoiditis, sinusitis frontal, and myocarditis. In December, 1933, he filed application for a pension for disability resulting from his military service, caused by sinusitis and myocarditis, and listing the names of five physicians who had treated him from 1918 to 1926. In support of the August, 1928, application, the insured furnished the affidavit of two physicians who stated that they had known him for over two years, and that the facts therein contained were true to the best of their knowledge and belief. He also furnished his own sworn statement that he had suffered from sinusitis and chronic myocarditis since his service, and that his sinusitis had become so severe after his discharge that he had had to give up his practice and find employment where he could be inside, and that he could not stand any exposure to cold.

Supplementing his application for retirement, the insured reported that in 1918, during service, the Camp Physician examined him and told him that he had acute myocarditis for which he prescribed rest and medication which the insured continued to take under his directions for several weeks. He also stated that he had an acute gastric upset which subsequently developed into a duodenal ulcer which perforated in 1920 and again in 1925; and that in 1925 he requested a gastro-intestinal X-ray examination which disclosed an active duodenal ulcer. There was a report of this examination in a letter dated December 9, 1931, from the regional medical officer of the area where Pence was employed at the time of the examination, to the Milwaukee Veterans' Administration, stating that their records showed that they had examined Pence in April, 1925: "G. I. — Fluoroscopic: Stomach negative. Duodenal Bulb — questionable. Suspected adhesions, hepatic flexor of colon. Plates: Colon negative. Cecum and appendix negative. Diagnosis: Suspected duodenal pathology."

December 8, 1933, the insured wrote a very indignant letter to the Veterans' Administration protesting their disposition of his claims for compensation or retirement pay, and their failure to give proper consideration to the affidavits of the five physicians filed in support thereof. He reiterated his defects and disabilities, stating, "It should be well known that a degenerative type of myocarditis is the most treacherous form of heart disease known, as long as compensation keeps up there are very fine (sic) manifest symptoms and that when de-compensation does occur it is usually complete and final. This knowledge, it is believed, should be used in evaluating a diagnosis of degeneration myocarditis."

In addition to these reports, the Government also introduced the testimony of a physician who had known the insured while he was in private practice in Iowa, and who stated that the insured had confided to him in 1922 or 1923, that he planned to get out of private practice because he found the country practice too...