Roberts v. United States

• Citation: 17 F. Supp. 641
• Decision Date: 24 December 1936
• Docket Number: No. 1731.,1731.
• Parties: ROBERTS v. UNITED STATES.
• Court: U.S. District Court — District of Idaho

17 F. Supp. 641

ROBERTS v. UNITED STATES.

No. 1731.

District Court, D. Idaho, S. D.

December 24, 1936.

Delana & Delana, of Boise, Idaho, for plaintiff.

John A. Carver, U. S. Dist. Atty., and E. H. Casterlin and Frank Griffin, Asst. U. S. Dist. Attys., all of Boise, Idaho, and Luke Kavanaugh, Sp. Atty., Department of Justice.

CAVANAH, District Judge.

A directed verdict for the defendant was granted, and the plaintiff now moves for a new trial.

The principal grounds urged by the motion are: (1) That there was sufficient evidence presented to require the court to submit the case to the jury and (2) newly discovered evidence.

The first inquiry is, Does there appear sufficient substantial evidence to sustain a verdict for the plaintiff? If not, then it becomes the duty of the court to direct a verdict for the defendant after applying the principles recognized by the Supreme Court and the Ninth Circuit Court of Appeals.

(a) Where the court has said in the case of Small Company v. Lamborn & Company, 267 U.S. 248, 254, 45 S.Ct. 300, 303, 69 L.Ed. 597, "The rule for testing the direction of a verdict, as often has been held, is that where the evidence is undisputed, or of such conclusive character that if a verdict were returned for one party, whether plaintiff or defendant, it would have to be set aside in the exercise of a sound judicial discretion, a verdict may and should be directed for the other party. The view that a scintilla or modicum of conflicting evidence, irrespective of the character and measure of that to which it is opposed, necessarily requires a submission to the jury has met with express disapproval in this jurisdiction, as in many others," and where the Ninth Circuit Court of Appeals has said in the case of Atchison, T. & S. F. Ry. Co. v. Spencer, 20 F.(2d) 714, 717, in approving the rule laid down by the Supreme Court of the United States in the case of Barrett v. Virginian R. Co., 250 U.S. 473, 39 S.Ct. 540, 63 L.Ed. 1092, "whenever, in the trial of a civil case, it is clear that the state of the evidence is such as not to warrant a verdict for a party, and that if such a verdict were rendered the other party would be entitled to a new trial, it is the right and duty of the judge to direct the jury to find according to the views of the court."

(b) That the opinions of medical witnesses that work impaired plaintiff's health are without weight as to the plaintiff's being totally and permanently disabled before his policy lapsed if there is substantial evidence showing that he did in fact work to the extent of establishing his ability to work with reasonable regularity. The Supreme Court in the case of United States v. Spaulding, 293 U.S. 498, 505, 55 S.Ct. 273, 276, 79 L.Ed. 617, said: "the opinions of respondent's medical witnesses that work impaired his health and tended to shorten his life had no substantial bearing upon the question whether total disability while the policy was in force continued during the subsequent years. As against the facts directly and conclusively established, this opinion evidence furnishes no basis for opposing inferences."

(c) Long delay in bringing suit is to be taken as strong evidence that the plaintiff was not totally and permanently disabled before the policy lapsed. The Supreme Court as to this principle said in the case of Lumbra v. United States, 290 U.S. 551, 560, 54 S.Ct. 272, 276, 78 L.Ed. 492: "His conduct following the alleged accrual of his claim reflects his own opinion as to whether he was totally and permanently disabled at the time of the lapse. His own statements to medical men, their diagnoses, his repeated applications to the government for compensation, and his failure earlier to assert any claim, show that for a decade he did not believe that he was totally and permanently disabled when he let his policy lapse May 31, 1919. 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."

With these principles in mind we find that in substance the evidence discloses that the plaintiff immediately upon leaving the service worked at farm work for his father for eight months receiving the sum of $100 per month, and he continued from then on until 1924 doing...