United States v. Linkhart, 4852.

• Decision Date: 26 May 1933
• Docket Number: No. 4852.,4852.
• Citation: 64 F.2d 747
• Parties: UNITED STATES v. LINKHART.
• Court: U.S. Court of Appeals — Seventh Circuit

64 F.2d 747 (1933)

UNITED STATES v. LINKHART.

No. 4852.

Circuit Court of Appeals, Seventh Circuit.

April 4, 1933.

Rehearing Denied May 26, 1933.

Paul F. Jones, U. S. Atty., and Walter E. Ackerman, Asst. U. S. Atty., both of Danville, Ill., and J. O'Connor Roberts, of Washington, D. C., for the United States.

Charles H. Fletcher, of Mattoon, Ill., and Charles Troup, of Danville, Ill., for appellee.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

ALSCHULER, Circuit Judge.

The suit was upon a war risk insurance certificate issued to appellee, Linkhart, after he entered the service in 1918, from which he was honorably discharged April 28, 1919. It was stipulated in the record that his insurance contract lapsed for nonpayment of the monthly premium thereon which was due May 1, 1919; and "that the only issue in this case is whether plaintiff was totally and permanently disabled on or before April 1, 1919, or within thirty-one days thereafter." Jury was waived, and upon trial by the court judgment was given for appellee.

In this, as in many such cases, there is the situation of a man, holding a contract for indemnity against total and permanent disability occurring during the life of the contract, suffering many years to pass (in this case over twelve) after alleged accrual of his cause of action before asserting his claim, which, if well founded, would have entitled him to receive $57.50 per month from the time the total and permanent disability began.

While under the successive statutes enlarging the time wherein such actions may be brought the long delay does not of itself bar the action, it is a fact to be considered with all the other facts in determining, even upon appeal, whether there is substantial evidence to support the claim.

Possibly the belated bringing of such actions has been stimulated by some expressions of courts, as well as by the wording of the departmental regulation, which provides that: "Any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation shall be deemed, in Articles III and IV, to be total disability. Total disability shall be deemed to be permanent whenever it is founded upon conditions which render it reasonably certain it will continue throughout the life of the person suffering from it."

If the word "continuously" be construed to imply without any interruption at all, literal adherence to the regulation might warrant recovery as for a total and permanent disability even though the interruption of occupation or of ability to follow it was but brief and infrequent. Such interpretation of the regulation could not have been intended; or, if intended, it would not be a regulation, but rather legislation by a department without power to legislate; and it would be in contravention of the statute under which this contractual liability attaches only if the disability is total and permanent.

The regulation so construed would have the practical effect in many cases of eliminating from the contract the word "total" or "permanent," or even both, thereby plunging the insurer into a tremendous potential liability wholly uncontemplated by the contract, or by the statute which is its source.

Where much time has intervened between the lapsing of the insurance and the trial of the cause, the experience of the intervening years is usually helpful in determining questions of the permanence and of the totality of the alleged disability. There was evidence here tending to show that at the time of his discharge from the service Linkhart was suffering...