United States v. Halliday

• Decision Date: 09 January 1941
• Docket Number: No. 4714.,4714.
• Citation: 116 F.2d 812
• Parties: UNITED STATES v. HALLIDAY.
• Court: U.S. Court of Appeals — Fourth Circuit

116 F.2d 812 (1941)

UNITED STATES v. HALLIDAY.

No. 4714.

Circuit Court of Appeals, Fourth Circuit.

January 9, 1941.

Fendall Marbury, of Washington, D. C., Attorney, Department of Justice, and Oscar H. Doyle, U. S. Atty., of Anderson, S. C. (Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., and Wilbur C. Pickett, Sp. Asst. to Atty. Gen., on the brief), for appellant.

Warren E. Miller, of Washington, D. C., and R. K. Wise, of Columbia, S. C., for appellee.

Before SOPER and DOBIE, Circuit Judges, and CHESNUT, District Judge.

DOBIE, Circuit Judge.

This was an action on a war risk insurance policy, brought by James H. Halliday (hereinafter called the insured), who sued through his Committee, Annie Halliday, to recover total permanent disability benefits under his term policy, which was issued between June 23, 1918, and April 2, 1919, while he was in the military service of the United States.

In his complaint, filed November 20, 1936, insured alleged that he had been totally and permanently disabled since April 2, 1919, the date of his discharge from the army. Insured's policy, which had lapsed for nonpayment of premiums, was reinstated on August 1, 1920, and premiums were paid which carried the policy, including the grace period, to October 31, 1920. Accordingly, the issue submitted to the jury was whether insured was totally and permanently disabled before October 31, 1920.

At the close of the case, the Government moved the court to direct a verdict in its favor upon the ground that there was no substantial evidence that the plaintiff was permanently and substantially disabled at any time while the insurance was in force. This motion was overruled by the court. Thereafter, the jury rendered a verdict for the insured and fixed April 2, 1919, the date of the insured's discharge from the army, as the date of his total and permanent disability. Judgment was accordingly entered in favor of the insured. The Government strenuously objected to some of the instructions given by the trial judge and to certain of his rulings on the admissibility of evidence. Since we believe that the lower court should have directed a verdict in favor of the Government on the ground that there was not substantial evidence of total and permanent disability to go to the jury, it is not essential that we pass on the other questions involved in this case.

After a careful survey of the record, we are forced to the conclusion that there was no substantial evidence to prove that the insured was totally and permanently disabled on or before October 31, 1920. We therefore proceed to a brief survey of this evidence.

Insured introduced only one medical witness, Dr. J. N. Land. Dr. Land did testify: "I would not have advised him to do any work since he has been out of the Army. I think it would have been harmful to him. If he had just been put to work I think he would have a complete collapse, mentally and physically. He is not physically in good shape, and is mentally in bad shape. When he got out of the Army I didn't hold any hope for his recovery, a man in his condition will go from bad to worse. I think he has gradually progressed since he came out of the Army. I was instrumental in having a committee appointed for him."

This testimony, however, has little probative force. Dr. Land testified that he had not examined the insured "physically until about six years ago", — more than thirteen years after the expiration of the policy. He further stated that he had seen the insured only a very few times before that date: "I would say I saw the man at least two or three times a year, possibly more." As Dr. Land testified, he would see the insured on the streets or in a drug store. On these occasions when the insured sought help and advice of the doctor, the doctor stated: "He was not my patient. I simply shunted him off and got away from him as best I could." In other words, Dr. Land did not see the insured professionally on the few occasions when Dr. Land came into contact with the insured, prior to the doctor's employment by the insured six years before the trial. Dr. Land testified further that insured was neurasthenic and a hypochondriac; but he admitted that he was a general practitioner and in no sense an expert or specialist in mental diseases.

Insured's wife testified that she had married him in April, 1921. She testified further that prior to their marriage, insured had come to see her from his home, about eighteen miles away, or from the hospital where he was taking treatment. Insured, according to his wife's testimony, was at the time of their marriage far from well and complained constantly of his stomach, heart and kidneys. She said, too, that farm work upset his nerves and stomach. She did marry him, however, and bore him four children. Two of insured's brothers also testified on his behalf. The testimony of the brothers was far from convincing on the question of insured's total and permanent disability. One brother testified that the insured was never "able to make a full week". The other brother testified that he had "not seen him (insured) do any successful work since he was discharged".

There were several other lay witnesses testifying for insured but the testimony of these witnesses was utterly lacking in definiteness. Thus, Mr. Leverett testified: "When he (insured) returned, he seemed to be a man that didn't have a grip on himself. It was nervousness of some kind." Mr. Jackson stated: "I would say that for the last ten or twelve years he has seemed to be very nervous. * * * I have had no opportunity to see him at his farm nor to know whether he did any work." Other lay witnesses testified along the same general line.

There were numerous examinations of insured by government physicians from April 12, 1920, to April 11, 1935. These reports showed that insured's tuberculosis had been arrested and no note was made in these reports of any positive mental or nervous disorder on the part of insured until February 14, 1921. In one of these reports, dated December 17, 1924, we find: "Mental Examination: Patient answers questions readily and accurately. Orientation and memory good. Insight and judgment good. There is no history or evidence of any psychosis. Findings of Board: It is our opinion that claimant has an industrial disability of fifteen (15) percent from tuberculosis, chronic pulmonary, minimal involvement, apparently arrested. There is no N. P. (neuro psychopathic) disability".

In 1925, insured applied for an ordinary life insurance policy, with a provision for total permanent disability benefits, in the Pacific Mutual Life Insurance Company. Insured represented to that Company's doctor, who examined him, that he was then in good health. On the basis of this examination, the doctor recommended that the policy applied for be issued to the insured. The Company issued a substandard policy to Halliday, though he never accepted and paid for this policy. This doctor stated that he did not "discover upon examination or inquiry any evidence of disease or functional derangement, past or present, of the brain or nervous system". He also testified that if there had been anything noticeable in the conduct of insured, he would have noted it in his report.

Insured's wife testified further that insured's condition did not improve after he was married and that he had threatened to commit suicide and kill her and the children; and that she had left him several times and stayed with her mother until he "would get a little better". But, as she testified, she had "never requested that he be sent to any mental hospital because he did not want to be", although she "thought it would be a good thing". She stated that she had been appointed Committee for the insured on December 19, 1935, when he was formally adjudged non compos mentis, and that he had been sent to a mental hospital in 1936 and had stayed in this hospital only about thirty days. There was testimony by several witnesses that the plaintiff had pursued a course of vocational training in agriculture after his discharge from the army and that he had to some extent engaged in farming. After insured had ended his vocational training, he rented a 50-acre farm upon which he did some work and later he bought a farm of 73 acres, on which he was living with his family at the time this case was tried.

Even if insured had been disabled at any time before the expiration of his war risk policy on October 31, 1920, due to mental or nervous disease, there is no substantial evidence to show that his nervous or mental disorder brought about disability that was either total or permanent. It was aptly stated by Circuit Judge Gardner in United States v. Kiles, 8 Cir., 70 F.2d 880, 883: "Passing for the moment the question of the probative force of the testimony of the lay witnesses, and assuming that it was sufficient to...