Prevette v. United States, 3513.

• Decision Date: 04 January 1934
• Docket Number: No. 3513.,3513.
• Citation: 68 F.2d 112
• Parties: PREVETTE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

68 F.2d 112 (1934)

PREVETTE et al. v. UNITED STATES.

No. 3513.

Circuit Court of Appeals, Fourth Circuit.

January 4, 1934.

R. H. McNeill, of Washington, D. C. (H. Woodward Winburn, of Greensboro, N. C., on the brief), for appellants.

Charles R. Jonas, Asst. U. S. Atty., of Lincolnton, N. C. (Frank C. Patton, U. S. Atty., of Morganton, N. C., and Thos. A. McCoy, Asst. U. S. Atty., of Asheville, N. C., on the brief), for the United States.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

SOPER, Circuit Judge.

This is a suit upon a policy of war risk insurance in the amount of $10,000, issued to Carl Ervin Creedmore, who was drafted in the army on August 26, 1918, and discharged October 28, 1918, after serving two months and two days at Camp Jackson, S. C. The policy lapsed for nonpayment of the premiums on December 1, 1918, unless at that time the insured was permanently and totally disabled. The insured died on July 12, 1923, of a kidney ailment which the testimony showed was associated with or induced by tuberculosis. Suit was brought on the policy by the administrator of the estate of the insured, hereinafter called the plaintiff, on October 18, 1928. The question of permanent and total disability was left to the jury, which returned a verdict for the defendant; and the plaintiff appealed, assigning as error the admission of certain evidence, the refusal of the trial judge to grant certain instructions to the jury, and the impropriety of an argument made to the jury by the United States attorney.

The evidence tended to show that the insured was suffering from tuberculosis at the time of his discharge after his brief service in the army. A physician who examined him in 1918 and 1919 testified on his behalf that his condition was active, and considerably advanced, and that it grew progressively worse during this period. He was advised to go to bed, to take treatment, and not to work, and his physician thought that if he should do so there was possibly a chance of recovery. He failed to heed this advice. Other physicians testified that the condition of the insured at various times from 1919 until his death grew progressively worse, although there were periods when the disease was quiescent. In 1920 or 1921 he developed a kidney trouble which was the immediate cause of his death. On the other hand, medical testimony on the part of the United States tended to show that in 1921 the pulmonary tuberculosis from which the insured was suffering was arrested and inactive.

The work record of the insured showed that within a week after his discharge, he returned to his former occupation as a laborer in a cotton mill, and that he continued to work in various mills with some interruptions until November 25, 1922, earning the sum of approximately $1,700 in four years. During this period, he was assisted in his work by other persons. During certain periods, his work was fairly regular but there were also periods of one to four months, aggregating in all fifteen months, when he did not work at all. Neither side requested a directed verdict on this testimony.

Over the objection of the plaintiff, a physician, testifying for the United States, was allowed to express the opinion, in answer to a hypothetical question based on the work record of the insured, that on October 28, 1918, the insured was not totally and permanently disabled. It was error to receive this testimony for the reasons pointed out in our decision in United States v. Sauls, 65 F. (2d) 886. The plaintiff, however, suggests in his brief that he does not seek a reversal merely on this ground, desiring only a ruling for the guidance of the court in the event of a new trial; and we do not regard the error as prejudicial because physicians testifying for the plaintiff were also allowed, contrary to the ruling in the cited case, to express an opinion as to the ability of the deceased after his discharge from the army to follow continuously a substantially gainful occupation.

Evidence offered by the United States was also admitted over the plaintiff's objection to show that the insured drew compensation from the United States at the rate of $80 to $90 per month. Subsequently, it was shown, apparently without objection, that the total compensation might have amounted to $5,000. The ground of the objection to the testimony was not stated at the time that the testimony was offered see United States v. Sauls (C. C. A.) 65 F.(2d) 886; but it is now argued that the evidence was prejudicial as indicating that the United States had already paid the insured a considerable sum for his military services, and because the trial judge did not explain to the jury the difference between compensation and the insurance claimed in this case. On the other hand, it is suggested by the United States that its purpose was to offset certain testimony of the plaintiff tending to show that the insured did not follow the advice of his physicians to abstain from labor, because he could not afford to do so, and to show that he worked as a mill hand from choice and not from necessity.

It was held in ...