United States v. Johnson

• Decision Date: 18 February 1938
• Docket Number: No. 10980.,10980.
• Citation: 94 F.2d 539
• Parties: UNITED STATES v. JOHNSON.
• Court: U.S. Court of Appeals — Eighth Circuit

94 F.2d 539 (1938)

UNITED STATES v. JOHNSON.

No. 10980.

Circuit Court of Appeals, Eighth Circuit.

February 18, 1938.

Clinton R. Barry, U. S. Atty., of Fort Smith, Ark., G. W. Hendricks, Sp. Asst. to U. S. Atty., of Little Rock, Ark., John E. Harris and Duke Frederick, Asst. U. S. Attys., both 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, of Washington, D. C., for appellant.

A. N. Hill, of Charleston, Ark., and E. H. Bost, of Fort Smith, Ark., for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

This action at law was commenced December 9, 1935, to recover upon a policy of war risk insurance issued to James Johnson, who was in the United States Army from August 23, 1918, to April 3, 1919. He paid no premiums after his discharge from the service, and the policy lapsed on June 1, 1919, for nonpayment of premium. The insured died November 24, 1929. The plaintiff (appellee) in her complaint alleged that prior to its lapse the policy had matured by reason of the total and permanent disability of the insured due to "diabetes, kidney trouble, or kidney diseases, hypertension, high blood pressure, pleurisy, shortness of breath, rapid heart, heart trouble, heart diseases, urine loaded with sugar, rheumatism, nervousness and a weakened and impaired mind and body." This the government denied. The case was tried to a jury, and at the close of the evidence the government moved for a directed verdict. Its motion was denied. The jury returned a verdict for the plaintiff, upon which judgment was entered, and this appeal followed.

The government challenges the sufficiency of the evidence to sustain the verdict.

The burden was upon the plaintiff to prove: (1) That the insured was totally disabled by June 1, 1919, and (2) that his disability was then permanent, that is, based upon conditions then existing which made it reasonably certain that the total disability would continue throughout his life. This burden was enhanced because the insured at no time prior to his death had made any claim that he was so disabled on June 1, 1919, and the long unexplained delay in making claim for insurance and in bringing this action was "strong evidence that the insured was not totally and permanently disabled before the policy lapsed." Lumbra v. United States, 290 U.S. 551, 560, 561, 54 S.Ct. 272, 276, 78 L.Ed. 492; United States v. Rakich, 8 Cir., 90 F.2d 137.

The record contains no competent medical evidence which would justify a finding that the insured was on June 1, 1919, afflicted with diabetes or that if he was then so afflicted the disease had reached a state where it had become a totally disabling malady which could neither be arrested nor cured. Whether the insured had diabetes on June 1, 1919, and whether, if he had it, it had then become totally disabling and not subject to arrest or cure, were essentially medical questions. United States v. Clapp, 2 Cir., 63 F.2d 793, 795; Aetna Life Ins. Co. of Hartford v. Kelley, 8 Cir., 70 F.2d 589, 593, 93 A.L.R. 471; Mutual Life Ins. Co. of New York v. Still, 8 Cir., 78 F.2d 748, 750; London Guarantee & Accident Co. v. Woelfle, 8 Cir., 83 F.2d 325, 337; United States v. Rakich, 8 Cir., 90 F.2d 137, 138.

Dr. W. H. Bollinger, the only medical witness called by the plaintiff, testified that he had treated the insured, but he expressed no opinion that on June 1, 1919, the insured had diabetes. He testified that he thought that he had seen the insured prior to January 4, 1923, the date of his (the doctor's) first book entry showing a visit to the insured; that he had diagnosed the insured's trouble as diabetes at some time, but that he could not tell on what date; and that he did not know on what date he gave the insured his first treatment. The nearest the doctor came to testifying that he had diagnosed the insured's case as diabetes prior to June 1, 1919, was in his answer to the following question asked by the court: "Q. You may have treated him a week after he came out of the army or may have treated him between that and 1923?" "A. I am inclined to think I had, because I know I made the diagnosis in the office, and this the entry of January 4, 1923, is a trip to his house, and I know it must have been before that that I made the diagnosis of diabetes, but the date I can't tell you." The doctor further testified that diabetes is an incurable disease; that the treatment for it is diet and insulin; that ordinary work does not hurt a person with diabetes under proper treatment; that diabetics can carry on a lifetime if they have proper attention, but, without proper treatment, they are susceptible to other diseases; that the doctor treated the insured once a week and sometimes once a month; that the insured was not able to buy insulin; that he had an immense amount of sugar in his urine the first time the doctor examined him; that at that time he was not able to perform manual labor without treatment; that if the insured had had proper treatment he might have been able to "follow his ordinary life"; that theoretically he could but theories do not always work in all instances; that an attempt was made to get insulin for the insured through the Red Cross, but none was procured; that,...