United States v. Clapp, 180.

• Decision Date: 06 March 1933
• Docket Number: No. 180.,180.
• Citation: 63 F.2d 793
• Parties: UNITED STATES v. CLAPP.
• Court: U.S. Court of Appeals — Second Circuit

63 F.2d 793 (1933)

UNITED STATES v. CLAPP.

No. 180.

Circuit Court of Appeals, Second Circuit.

March 6, 1933.

Harry B. Amey, U. S. Atty., of Burlington, Vt., and Allen Martin, Asst. U. S. Atty., of Essex Junction, Vt., C. L. Dawson and Davis G. Arnold, both of Washington, D. C., and William J. Hession, of Boston, Mass., for the United States.

Harold C. Sylvester, of St. Albans, Vt. (J. A. McNamara, of Burlington, Vt., on the brief), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

The action was by a discharged soldier upon a policy of war risk insurance which lapsed on May 29, 1919. The plaintiff had been a farm boy before he was drafted, helping his father, who owned the farm. During his service the army rations apparently affected his digestion; at any rate he was much troubled with disorder of his stomach before his discharge, though it does not appear that his malady was serious enough to prevent the performance of his duties as a soldier. Upon his return he found himself, however, too ill to attend to his work upon the farm; at least his testimony would have justified a jury in so finding. He said that he could not continuously work for more than a few days at a time without being overcome by digestive disorders, vomiting, nausea and the like, which compelled him to lie off until by rest he could recover. It is true that he was able to engage in sports, at times pitching for a local baseball team through a full game; but the evidence was enough to support a verdict that when the insurance expired, he was totally disabled; that is, that his condition rendered it impossible for him "to follow continuously any substantially gainful occupation." Apparently no other occupation was open to him which he could have followed more continuously than farming, and for the latter he might be regarded as unfit.

Thus the first condition upon which the policy depended was properly before the jury. Did the case stop there, we should not interfere. However, the policy is to pay him only if his disability is permanent at the lapse; that is, in case it is "founded upon a condition which renders it reasonably certain that it will continue throughout the life of the person suffering from it." The action was brought on December 1, 1931, twelve and a half years after the lapse; the trial was in the following March. By his own story the plaintiff's disorder had continued from the time of his discharge, and had grown, if anything, worse. He testified that he had not been able to do any more work than when he was mustered out, and that his complaint had developed into a duodenal ulcer of the stomach. He went to a doctor shortly after his return home, who treated him from time to time until the spring of 1922 without alleviating his troubles. This doctor did not however diagnose his case as duodenal ulcer, nor did he even intimate at the trial that for the three years while he treated him, he was so afflicted. He could not then or later say what was the cause of his illness; he did not venture to predict with reasonable certainty, or even as a guess, how long the malady would last. His next doctor believed that he had already developed an ulcer when he first treated him in May or June of 1922; he did not say how long he had then had it, or more than that it would not develop quickly. A third doctor observed him shortly before the trial, who said that he was then suffering from duodenal ulcer which might have existed in May, 1919, but who would not commit himself further. Thus, the only proof of permanence was that the plaintiff had been continuously disabled since his discharge, and that three years afterwards he had developed a duodenal ulcer. Unless the jury was entitled to conclude from this that on May 29, 1919, his disability was reasonably certain to last during his life, he had not made out a case.

If the trial had at once followed the lapse, the permanence of the disability could only have been determined by the best medical prognosis possible from examination and past history. When nearly thirteen years had passed, it was proper to use the added light which they throw upon his condition in May, 1919. The issue must not, however, be confused, because meanwhile his original disability became permanent. The permanence even though in fact brought about by the original illness, might be the result of an entirely different disease. The insured might for example be prostrated at the lapse by a malaria, which nobody would say was reasonably certain to be permanent. That malaria might superinduce a new disease, which might itself be permanent. Judged by what followed, we could now see that he was to become permanently disabled. That would not serve; the result would be to allow recovery for any permanent disability which developed out of a disease existing at the lapse, though the sequence of the two could not then or at the trial be pronounced to be certain. That would clearly violate the meaning of the regulation. It is not enough that, as things took their course, the insured became permanently disabled.

The proper test, we think,...