Theberge v. United States, 42.

• Decision Date: 01 February 1937
• Docket Number: No. 42.,42.
• Parties: THEBERGE v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

87 F.2d 697 (1937)

THEBERGE v. UNITED STATES.

No. 42.

Circuit Court of Appeals, Second Circuit.

February 1, 1937.

Joseph H. San, of New York City, Joseph A. McNamara, U. S. Atty., of Burlington, Vt., Julius C. Martin, Wilbur C. Pickett, and Randolph C. Shaw, Sp. Assts. to Atty. Gen., and William J. Hession, of Boston, Mass., for appellant.

Frank E. Barber, of Brattleboro, Vt., for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

This appeal presents as its single ground that the plaintiff did not make out a case for submission to the jury; the issue being whether the insured, who was dead upon the second trial, had been permanently and totally disabled, when he was mustered out of the service. He had enlisted first on July 22, 1917, and had been gassed on July 7, 1918, and wounded on October 4, 1918, both times in action. He was in a hospital for three months and was mustered out in June, 1919, and at once reenlisted. He contracted syphilis on October 3, 1919, but continued to serve until he was a second time mustered out on August 26, 1920, in this country. He came back to his home in Bennington, Vermont, where he at once took up his former occupation as a woollen weaver. He first went to the mill where he had last been employed and where, as appears from its records, he worked from October 2, 1920, to March 19, 1921, during which time he earned $757; at the rate therefore of about $30 a week. It is true that he did not work every day, but obviously he was not at that time unable "to follow continuously any substantially gainful occupation," even though he may already have been beginning to feel some effects from his infection. He was described as a "good weaver," and whatever his incipient disorder, it had not yet incapacitated him. It does not appear that he was discharged, nor indeed why he left at all; but whatever the reason, he went directly to Utica where he got a similar job in a mill of the American Woollen Company, and where, as again appeared from its records, he stayed until the end of January, 1922. His total wages for this period were $840, an average of about $25 a week. Again, he swore that he was in an excitable and nervous condition, which no doubt was true; but he was able to hold his job, his absences not being sufficient to cause his discharge. Once more it does not appear why he left Utica, whence he went directly to a mill in Rochester, New York, where he worked for five or six months until it closed down, after which he got another job at Philadelphia for five months more. It thus appears that for more than two years after the lapse of the policy, he was able to continue in the occupation in which he had been skilled before his enlistment, and substantially without intermission. It is not necessary to trace his doings thereafter and until he filed his complaint in November, 1931. By that time his disease had progressed until he was mentally deranged — at least a jury might find so. His death confirms the obvious conclusion that he had succumbed because of the infection. In the face of this record it was error to submit the case to a jury.

The plaintiff's excuse is that the insured was not obliged to continue work at the risk of his health. United States v. Acker, 35 F.(2d) 646, 648 (C.C.A.5); United States v. Lawson, 50 F.(2d) 646, 651 (C.C.A.9); Fladeland v. United States, 53 F.(2d) 17 (C.C.A.9). The doctrine is a humane one and not to be discouraged, but it must not be misused. A man may have to endure discomfort or pain and not be totally disabled;...