United States v. Lumbra, 182.
| Decision Date | 06 March 1933 |
| Docket Number | No. 182.,182. |
| Citation | 63 F.2d 796 |
| Parties | UNITED STATES v. LUMBRA. |
| Court | U.S. Court of Appeals — Second Circuit |
Harry B. Amey, U. S. Atty., of Burlington, Vt., and Allen Martin, Asst. U. S. Atty., of Essex Junction, Vt. (Davis G. Arnold, William J. Hession, and Lawrence A. Lawlor, all of Washington, D. C., of counsel), for the United States.
J. A. McNamara, of Burlington, Vt., and Harold C. Sylvester, of St. Albans, Vt., for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
This is an appeal by the government from a judgment in favor of Newton W. Lumbra, who brought action to recover upon a war risk insurance policy. We think the judgment must be reversed, because there was no evidence that on May 1, 1919, when the policy lapsed for nonpayment of premiums, it was reasonably certain that the disability of the insured would continue throughout his life.
From 1917 to 1919 Lumbra was a soldier in the military service of the United States. He testified that he was injured in France during a bombardment by the explosion of a shell, which fell near him while he was on his way back from the trenches to his dugout. He suffered a physical injury to his ankle, and was thrown down and rendered unconscious by the concussion. The explosion occurred on June 17, 1918. He was taken into his dugout, where he regained consciousness, and afterwards to the hospital, from which he was discharged late in August. Before the explosion he had been in good health. While confined in the hospital, he said that he had "faint, weak spells, dizzy spells — everything go black, and the sweat stand out on me and I would have to sit down." As soon as he had recovered from the injury to his ankle, he went back to his company and was given light work in the kitchen, but the "spells" continued and got gradually worse. After his return to the United States from France and his discharge from military service, which was on April 29, 1919, he went to his mother's house in Vermont, and did nothing for three or four months. He then began to work for the Wilcox Hall Company, rolling logs in their vats. This work was found to be too hard for him, and he was put at something lighter. He lost about half his time because of the dizzy spells, which got worse, and finally in 1921 he was forced to give up this employment. He then went to St. Albans and stayed for some time at a sister's, after which he obtained employment as a machinist's helper with the Vermont Central Railroad. He first worked for the railroad in that capacity, and later as a laborer. This employment with the railroad lasted from June, 1922, for about a year, but he lost considerable time owing to his ailment. In June, 1923, he went to work for the Boston & Maine Railroad, and worked until November, losing considerable time with it because of his condition. He then returned to the Vermont Central and remained with it until February, 1929, but was put at light work, and finally was only able to sweep around the railroad shop and attend to the lavatories. His attacks increased in frequency; and in 1923 they manifested themselves in epileptic seizures, which became so frequent and severe that in 1929 he had to cease all employment. From 1926 Lumbra was in the hospital seven different times from two weeks to two months. There was testimony that the railroad employed him as long as it did because he was an overseas veteran and veterans were specially favored.
Dr. Skeels testified as an expert on behalf of the plaintiff. He said that in his opinion he had "epileptiform convulsions * * * and they were caused by an injury he had from the high explosive. * * *" But there was no testimony that when he allowed his policy to lapse his condition was such that it could be said with reasonable certainty that he then had epilepsy or that epilepsy would ensue or that for any reason he was then permanently disabled. There was evidence from which a jury might find that, when the plaintiff ceased to pay premiums in May, 1919, he was totally disabled, but none from which they...
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