United States v. Depew, 1659.

• Decision Date: 27 December 1938
• Docket Number: No. 1659.,1659.
• Parties: UNITED STATES v. DEPEW.
• Court: U.S. Court of Appeals — Tenth Circuit

100 F.2d 725 (1938)

UNITED STATES v. DEPEW.

No. 1659.

Circuit Court of Appeals, Tenth Circuit.

December 27, 1938.

Thomas E. Walsh, of Washington, D. C. (Summerfield S. Alexander, U. S. Atty., R. T. McCluggage, Asst. U. S. Atty., of Topeka, Kan., Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and Keith L. Seegmiller, Atty., Department of Justice, of Washington, D. C., on the brief), for the United States.

Lewis A. Hasty, of Wichita, Kan. (Roger P. Almond, of Wichita, Kan., on the brief), for appellee.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

BRATTON, Circuit Judge.

Joseph Elbert Depew enlisted in the army on December 6, 1916, and was honorably discharged on June 4, 1920. He reenlisted on October 20, 1920, and served successive enlistment periods until he was honorably discharged on September 20, 1932. In April, 1931, he made written application for a five-year convertible term policy of insurance. In answering questions propounded in the application, he stated that he was then in good health, and that he had never been treated for any disease of brain or nerves, throat or lungs, heart or blood vessels, stomach, liver, intestines, kidney or bladder, genito-urinary organs, skin, glands, ear or eye, or bones. The policy issued effective as of May 1st, and all premiums were paid on it through March, 1933. In February, 1933, the Director of Insurance purported to cancel the policy effective as of May 1, 1931, for fraud in the answers contained in the application. Insured appealed to the Administrator of Veterans' Affairs, and on May 8th, the Administrator's Board of Appeals approved the action of the Director. Insured subsequently filed this suit to recover on the policy. He died on April 26, 1934, and the action was revived in the name of Ola Margaret Depew, as administratrix of the estate of the deceased, and as the beneficiary named in the policy. She filed an amended and supplemental petition in which it was alleged, among other things, that the insured became totally and permanently disabled on August 8, 1931, while the policy was in full force and effect. By answer, the Government admitted the issuance of the policy, and the payment of premiums through March, 1933; denied total and permanent disability during the life of the policy; and affirmatively pleaded that the policy was obtained through fraud on the part of insured in stating in the application that he was then in good health and that he had not been treated for any of the diseases enumerated.

Trial by jury was waived. At the close of all the evidence the Government moved for judgment on the ground that the evidence showed as a matter of law that the policy was obtained by fraud. The court found generally for plaintiff, and specifically that insured became totally and permanently disabled on August 8, 1931, while the policy was in force. No specific finding was made concerning the issue of fraud in the answers in the application. Judgment was entered for plaintiff. The Government appealed and the single question is whether the policy was invalid for fraud in procuring it.

Insured had an eighth grade education, and his last employment before entering the service was that of fireman for a railroad company. He was a technical sergeant in the air corps of the army, at least from September, 1929, until the date of his discharge — the record not showing when he first acquired such position. Hospital records in the office of the Adjutant General showed these facts. Insured was in a hospital at Fort McDowell from December 20, 1916, to March 19, 1917, and the final diagnosis was pneumonia, lobar, right lower lobe, following measles. He was in a hospital at Fort Sam Houston from January 4, to March 30, 1926, and the final diagnosis was cystitis, acute, cause undetermined. He complained of frequent urination, pain and blood following urination, and tenderness over cystic area. One objective symptom was a few moist rales in left apex of lungs. He was again in the hospital at Fort Sam Houston from April 21, to May 6, 1927. The final diagnosis was appendicitis, acute gangrenous, and an appendectomy was performed. He returned to the hospital on May 12th and remained there until July 13, 1927, apparently receiving further treatment for his condition following the appendectomy. He was again in the hospital from January 20, to April 11, 1928, and the diagnosis was cholangitis, acute, catarrhal, cause undetermined, bronchiectasis, middle and lower lobes, right lung, moderately severe, LOD. He returned to the hospital on July 9, 1928, and remained there until September 15th. He gave a history of flu in 1919, followed by a cough which had continued until the then present time; that before his admission he raised about three cups of sputum per day; that following his discharge three months previously, he continued postural drainage twice daily; that three times there had been blood in it which seemed to be fresh blood, the last time being ten days prior to the date on...