United States v. Calvey

• Decision Date: 08 March 1940
• Docket Number: No. 7180.,7180.
• Citation: 110 F.2d 327
• Parties: UNITED STATES v. CALVEY.
• Court: U.S. Court of Appeals — Third Circuit

110 F.2d 327 (1940)

UNITED STATES v. CALVEY.

No. 7180.

Circuit Court of Appeals, Third Circuit.

March 8, 1940.

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Frederick V. Follmer, U. S. Atty., and Arthur A. Maguire, Asst. U. S. Atty., both of Scranton, Pa., Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and Fendall Marbury, Sp. Atty., Department of Justice, of Washington, D. C., for appellant.

Joseph T. Kelly and Stanley F. Coar, both of Scranton, Pa., for appellee.

Before BIGGS, MARIS, and CLARK, Circuit Judges.

BIGGS, Circuit Judge.

The appellee brought suit against the United States to recover total permanent disability benefits upon a policy of United States Government life insurance issued in the sum of $5,000. The appellee's injuries resulted from his having fallen into a tractor-drawn mowing machine while in the United States Army. The appellee's claim was denied by the Veterans Administration. The case was tried to a jury and the sole issue presented was whether the appellee became totally permanently disabled as a result of the accident. The jury found for the appellee and judgment was entered in his favor. The appeal at bar followed.

Briefly, the facts are as follows: The appellee was forty-one years old at the time of the trial. The accident occurred approximately eight years earlier. There was opportunity therefore to ascertain the extent and permanency of the appellee's injuries with some certainty. A physician, Dr. McDonnell, who had examined the appellee for the first time more than four years after the accident stated what he himself had observed as to the appellee's condition and what the appellee had told him about some of his symptoms. This physician, who was the only medical witness, examined the appellee a second time just prior to the trial.

It appeared that both of the appellee's legs were much reduced in tissue, though the appellee's left leg had suffered the greater tissue loss, which included muscles, tendons, nerves and blood vessels. The large muscle of the left leg was completely gouged out and an area of scar tissue which had grown upon the posterior of this leg had adhered to the tendon of Achilles, causing the appellee's foot to turn inward and making walking difficult. The doctor testified in respect to the extent and permanency of appellee's injuries in part, as follows. "There must have been great loss of tissue in both legs, more especially in the left, as it took a year for the flesh to fill in and cover over; I make no argument about the permanency; his present disability is after' four years; very likely there will be no further rejuvenation of the nerves and muscles nor the recovery of motion. In addition to that, he has a pain from the cut and exposed nerves and the cramping of the muscles of both legs. All this seems sufficient to cause his present complaints, and to disable him from doing any kind of work."

It also appears that since his discharge from the Army because he could not perform the duties of a soldier, the appellee has lived with his sister in Scranton, Pennsylvania, and that his brother operated an automobile sales business in that city. The appellee very frequently went to his brother's garage and from time to time was sent by his brother to Buffalo to bring back new cars. Upon these occasions, the appellee was in charge of the men sent to Buffalo to drive the cars to Scranton and upon several occasions, though with very frequent stops for rest, the appellee himself drove a car from Buffalo to Scranton, a distance of about two hundred forty miles. The record shows that during the years 1933, 1934, 1935 and 1936 the appellee made a total of approximately eighty-seven trips from Buffalo to Scranton. He never received any compensation for this work, which averaged approximately twenty-two days in each year, but he did receive occasional gratuities from his sister and brother. The appellee's brother testified that he sent the appellee to Buffalo "to have his mind occupied and to give him something to do."

The Government's contention that the appellee was not totally and permanently disabled is based entirely upon the evidence relating to these trips. It contends that no individual who had suffered total and permanent disablement could perform the services which the appellee performed in the years referred to. The test, however, is not whether the injured individual may perform any services for any one but, as this court stated in United States v. Russian, 3 Cir., 73 F.2d 363, 364, whether the insured has suffered bodily impairment which makes it impossible for him to follow any substantially gainful occupation and whether this condition is reasonably likely to continue. All evidence respecting the appellee's physical condition, the nature of the work done by him prior to his injury, his training and background, the conditions under which he has worked since his injury and whether he actually worked or merely held a sinecure through pity for his disablement, must be given consideration. United States v. Vineyard, 5 Cir., 71 F.2d 624, 626, 627. The questions of the extent and permanency of the appellee's injuries in the case at bar properly were left to the jury by the trial court. The evidence therefore must be viewed in the light most favorable to the appellee and he must be given the benefit of such reasonable inferences in his favor as the jury might have drawn from the evidence. Lumbra v. United States, 290 U.S. 551, 553, 54 S.Ct. 272, 78 L.Ed. 492. We are of the opinion that the jury was entitled to conclude that the appellee was totally permanently disabled.

The United States also contends that the court below committed reversible error in permitting Dr. McDonnell to repeat to the jury statements made to him by the appellee upon the two occasions when he was examined by the physician. The Government takes the position that the appellee's declarations to Dr. McDonnell do not come within that exception to the hearsay rule which permits a physician to testify to the declarations of a patient as to his physical condition made while seeking medical aid. The appellee, says the Government, really was seeking to prepare for a trial upon the issue of his disability, the Veterans Administration having already rejected his application. Dr. McDonnell testified that ...