United States v. Holland

• Decision Date: 13 May 1940
• Docket Number: No. 9281.,9281.
• Citation: 111 F.2d 949
• Parties: UNITED STATES v. HOLLAND.
• Court: U.S. Court of Appeals — Ninth Circuit

111 F.2d 949 (1940)

UNITED STATES v. HOLLAND.

No. 9281.

Circuit Court of Appeals, Ninth Circuit.

May 13, 1940.

Benjamin Harrison, U. S. Atty., and Attilio Di Girolamo, Atty., Dept. of Justice, both of Los Angeles, Cal., and Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and Thomas E. Walsh, Atty., Dept. of Justice, of Washington, D. C., for appellant.

Alvin Gerlack, of San Francisco, Cal., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

GARRECHT, Circuit Judge.

On the twenty-seventh day of June, 1938, Wilson A. Holland, as plaintiff, filed a complaint in the court below against the United States of America, as defendant, on a policy of war risk insurance. He alleged that he served in the United States Army between the dates of May 6, 1917, and August 3, 1920; that while serving in said army he applied for and was issued a policy of war risk insurance in the sum of $10,000; that said policy was reinstated on April 1, 1927, in a like sum, and there was issued him a converted insurance policy; that premium payments were made to keep said converted policy in effect until November 30, 1933; that while such policy was in effect he contracted pulmonary tuberculosis and other disabilities; that said disease and disabilities rendered him totally and permanently disabled since August 30, 1933; that he submitted due proof thereof to the United States Veterans Administration; that payment of benefits under said policy was refused; and that a disagreement existed. The complaint concluded with a prayer for judgment. The defendant answered and thereafter the cause proceeded to trial. The jury returned a verdict in favor of the plaintiff, fixing the date of his total permanent disability as August 30, 1933. Judgment was entered for plaintiff March 2, 1939, from which judgment defendant appeals. The only question presented by the appellant is: "Whether there was any substantial evidence to establish that plaintiff became totally and permanently disabled on August 30, 1933, or before the expiration of the grace period on December 31, 1933." It was admitted at the trial that "With the grace period, the insurance was in force until December 31, 1933."

The facts are as follows:

At the time of the trial, February 28, 1939, the plaintiff was a patient in the United States Veterans' Hospital, San Fernando, California, and had been there since October 1, 1938. Holland first began to take treatments for tuberculosis in 1924; in 1925 he was hospitalized in the United States Veterans' Hospital at Fort Lyon, Colorado. He left that hospital in that year and for two years thereafter did no work and at the expiration of that time he was advised by the Bureau doctors that he was able to work. The plaintiff was under the care of or examined by Veterans' Bureau doctors once in 1924, twice in 1925, once in 1926, three times in 1927, once in 1931, and once in 1932. He entered the Veterans' Hospital at San Fernando in the summer of 1936 as a result of a hemorrhage of the lungs, and remained there more than a year.

In March, 1922, the plaintiff became postmaster at a small post office in Iowa, a position which officially he held until March, 1927, although he became ill in September, 1924, and took leave of absence for the remainder of his term as postmaster. For two months thereafter he was unemployed; then he secured work as a postal clerk in Glendale, California, working there from June to December, 1927. He left this employment to accept a position in the accounting department of Pickwick Corporation in Los Angeles, California, where he remained until January, 1931. Next, he attended Southwestern University in Los Angeles as a part-time student, where he continued, except for two months temporary work as a Deputy Assessor of Los Angeles County, until about March, 1933. The work record just rehearsed is not important, save as "background."

March, 1933, Holland obtained employment as Institutional Bookkeeper at the State Narcotic Hospital, Spadra, California. The salary was $120 per month, plus maintenance, which amounted to $11 per month. He held this position until the end of August, 1933, when he left because he felt he "could not carry on for the time being any further." He said he was tired and worn out and was advised by a physician that he must rest. On cross-examination it was developed that the position was abolished as of June 30, 1933, but he remained there through July and August, nevertheless. On August 30, 1933, he was examined by Dr. Robert E. Wyres, the Assistant Superintendent at Spadra, who, after a chest examination, X-ray, and study of the case history, found Holland to be suffering from active tuberculosis, chronic, "on the borderline between moderately and far advanced." He then rested in bed for a few months, arising for his meals; he was in bed about twenty hours a day. This caused his nervous condition to improve, but failed to eradicate his feeling of fatigue. November, 1933, he made the last payment of a premium on his converted or reinstated policy of insurance. In December, 1933 he was offered, and accepted, a position in the accounting office of the State Relief Administration in Los Angeles at a salary of $125 a month. He said it was necessary for him to return to work at that time. Holland continued in this position until August, 1935; he temporarily withdrew from this employment, however, for a period of approximately one week, from May 27 to June 3, 1934, to work as a bookkepper at the Preston School of Industry, Ione, California. When he made application for this position he was informed that a physical examination would be necessary, but later he told the interviewer that he feared he could not pass such an examination; so, in view of the fact that he previously had worked in the State service and Department of Institutions, it was agreed to waive the physical examination. After about a week on this job, fear that he would lose his civil service status if he was subjected to an examination and his physical condition became known caused Holland to resign this position and return to Los Angeles. Sometime following return to his position in Los Angeles the office was moved to San Francisco, and his salary increased to $170 a month. In August, 1935, he left that position to accept employment with the United States Government in the Treasury Accounts Division, at San Francisco, at a monthly salary of $225, where he remained until August, 1936, at which time he suffered a hemorrhage of the lungs, and entered the San Fernando Hospital. The plaintiff testified that while he held these last two jobs he suffered from increased coughing and was weighed down by a sense of fatigue; that he would sometimes take a day off and spend the entire twenty-four hours in bed; that on one occasion he became so tired that he took a week off from work and went into the desert and rested. He said further that normally his duties would not be considered difficult or arduous; that part of the time he actually worked on books and part time he supervised the work of other employees. Most of his spare time, nights after work, Sundays and Saturdays, was spent resting in bed.

Appearing as a witness, the plaintiff's wife testified relative to the period about August, 1933, that the plaintiff was always tired, always on the verge of a cold and had a "terrible" appetite, and suffered night sweats. She said that when he came home week ends from Spadra he spent Saturday and Sunday in bed. Harold A. R. Carleton, Holland's superior in the State Relief Administration, gave testimony that Holland's duties were of a consulting and advisory nature; that he was faithful to his tasks, but seemed to tire easily and was absent from work quite frequently; that he appeared to be unwell. The witness said he believed Holland was off work on an average of one day a week; that Holland's duties were not arduous, it was a "light" job; that the plaintiff was not required to do any night work, although other employees were; that there was no deduction made in Holland's salary for these absences, and the State payroll would not reveal them.

Roy W. Burton, Holland's immediate superior from December, 1933, to May, 1934, in the State Relief Administration, testified that Holland was quite thin when he knew him; that Holland seemed to lack energy, was always tired, subject to colds, and coughed considerably. The witness further stated that the plaintiff never helped during the time others of the staff were doing night work. The plaintiff's witnesses included a Dr. Harry Cohn, a man of wide experience in the tuberculosis field, who first examined Holland in January, 1937, and, apparently, again in February or June, 1939. Dr. Cohn made a thorough examination and, as a result thereof, concluded that the plaintiff was suffering from active tuberculosis, far advanced, in January, 1937. He also examined the X-ray taken at Spadra August 30, 1933, and stated that it revealed active tuberculosis present at the time the film was taken. The deposition of Dr. Mary Jones Mentzer, who examined the plaintiff September 19, 1935, was read in evidence. The doctor diagnosed the disease as "Bilateral tuberculosis (both lungs) — pulmonary, more extensive on right," complicated by acute pleurisy at the time. The tuberculosis was active on that date and on the borderline between moderately and far advanced.

The above recital of facts covers substantially all of the evidence introduced by the plaintiff upon the question at issue. We deem it unnecessary to set forth defendant's evidence. At the conclusion of all the evidence the defendant moved for a directed verdict in its favor, which was denied by the trial court, and the cause was submitted to the jury. The policy sued on defines total permanent disability as follows: "Total permanent disability as referred to herein is any...