United States v. Fields
| Citation | 102 F.2d 535 |
| Decision Date | 14 March 1939 |
| Docket Number | No. 11226.,11226. |
| Parties | UNITED STATES v. FIELDS. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Clinton R. Barry, U. S. Atty., of Fort Smith, Ark., Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and Young M. Smith, Atty., Department of Justice, of Washington, D. C., for the United States.
L. L. Cronkrite and Lee Cazort, of Little Rock, Ark., for appellee.
Before GARDNER and THOMAS, Circuit Judges, and REEVES, District Judge.
This is a suit on a policy of war risk insurance. From a judgment for the plaintiff, the government has appealed. The policy was in the face amount of $5,000. It contained the usual provision that, in case of total and permanent disability, $28.75 per month should be paid during the life of the insured.
The appellee claimed in his petition (filed February 27, 1932), that he became permanently and totally disabled while the policy was in force.
The defendant, now appellant, by its answer, denied the averments of total and permanent disability.
The sole issue submitted to the jury by the trial court was whether the appellee "became and was totally and permanently disabled on the 2nd day of October, 1919." The verdict of the jury was in the affirmative, and judgment followed.
While not waiving other points, the appellant now urges earnestly that the trial court should have directed a verdict for it at the close of the evidence. This contention requires an examination and survey of all the evidence in the case. In considering and weighing the evidence the facts in favor of appellee should be accepted as true, and all inferences fairly deducible therefrom should be drawn in his favor.
The appellee's military record extended from the date of his induction into the army on September 18, 1917, until his honorable discharge on August 12, 1919. His policy of insurance was issued soon after his enlistment and expired for non-payment of premiums on the 2nd day of October, 1919, the date when it was found by the jury that he became totally and permanently disabled. He paid no premiums after his discharge from the army. While on the battle-front as a combat soldier he sustained a gunshot wound to his right leg, on October 15, 1918. This was a severe wound near the ankle and ultimately, to-wit, April 29, 1922, caused the amputation of the lower part of his leg.
Soon after his return home, and on August 22, 1919, the appellee was examined by Dr. A. W. Rye, who said he found an angry and painful red spot on appellee's leg above the gunshot wound. At that time, he said the appellee was suffering considerable pain, and that the wound itself had become a running or "suppurative" sore. Dr. Rye found what he believed to be an enlarged heart, and diagnosed the heart condition as myocarditis. In answer to an unopposed question he said that the appellee's condition would prevent him at that time from following a substantially gainful occupation. It was the opinion of Dr. Rye that the heart condition as found by him was permanent.
Prior to his evidence as a witness, and on December 17, 1935, Dr. Rye had made a signed statement to the government wherein he said that he had treated the veteran from March to November, 1920, and then recalled that the veteran was "bothered with bronchitis and a bad leg." On cross-examination at the trial he stated that he had found an old account book since giving his signed statement, which showed that he had treated the veteran in August, 1919. He did not produce his account books at the trial, but said that he relied upon his memory for the reason that, "when a man has a serious ailment, a thing of that kind never leaves a doctor's memory." Dr. Rye further testified that the veteran operated a store at Russellville, "at which he sells fruit, vegetables and groceries, but whenever I have seen the veteran in his place of business he was seated."
Lay witnesses said that they had had occasion to observe the veteran's wounded limb about the time he returned from the service, in August, 1919, and that it was "inflamed, rather red, angry," and, one said, "it looked to me like a chronic sore."
Several other physicians testified for appellee relative to examinations and treatments of the veteran, but such examinations were made in the years 1931 and 1932, and in 1936 and 1938. These doctors found the veteran suffering from his wounded limb and a heart ailment. They believed at that time the heart trouble was incurable.
Another lay witness testified that he visited the veteran either in 1921 or 1922. The veteran then owned and operated a filling station, but employed a boy to do the work. At the time of this visit the veteran "was in a chair and had his leg over in another one on a pillow." In answer to a question as to his physical condition, the witness said:
This was the only evidence on behalf of the plaintiff which might tend to throw light on the condition of the appellee on October 2, 1919.
The testimony of physicians who examined him at a much later date tended to show that at that time he was incapacitated because of his injured limb and heart trouble. These examinations were made, as heretofore stated, in the years 1931 and 1932, and 1936 and 1938. And such examinations were made after the appellee had made a demand upon the government for payment of his insurance.
Although appellee was present at the trial, he did not testify.
It is unnecessary to review the evidence on behalf of the government for the reason that none of it can be construed as aiding the appellee's case. On the contrary, it tended very strongly to show that the appellee was not totally and permanently disabled at the time asserted by him.
Other facts, if they become pertinent, will be stated in the course of this opinion.
1. The evidence chiefly relied upon by the appellee to show his total and permanent disability on October 2, 1919, was that of Dr. A. W. Rye. This witness apparently was a practicing physician in the vicinity of the appellee's home to which he returned upon his discharge from the army.
When Dr. Rye was...
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