United States v. McGill
Decision Date | 16 February 1932 |
Docket Number | No. 9278.,9278. |
Citation | 56 F.2d 522 |
Parties | UNITED STATES v. McGILL. |
Court | U.S. Court of Appeals — Eighth Circuit |
W. N. Ivie, U. S. Atty., of Ft. Smith, Ark. (Cleveland Cabler, Regional Atty. Veterans' Bureau, of Little Rock, Ark., and G. T. Sullins, Asst. U. S. Atty., of Ft. Smith, Ark., on the brief), for the United States.
Before KENYON, VAN VALKENBURGH, and GARDNER, Circuit Judges.
September 3, 1929, appellee filed suit in the District Court for the Western District of Arkansas to recover upon a war risk insurance policy, alleging total and permanent disability suffered while said insurance policy was in full force and effect. The army service of appellee began March 30, 1918. He was discharged from the army July 15, 1919. June 7, 1918, he applied for and was granted, under the War Risk Insurance Act (38 Stat. 711, as amended), insurance in the sum of $5,000, as shown by stipulated amendment to his original complaint. The last premium paid by appellee was for the month of July, 1919, and his policy lapsed August 31, 1919, the last day of grace, unless it was kept alive by the total and permanent disability of appellee on or before the last-named date. The burden was upon appellee to establish this crucial fact.
Appellee testified:
He states that he first filed a claim for compensation with the Veterans' Bureau on account of his eyes in 1927; that while in the army he received medical treatment for another ailment, but none for his eyes. After his discharge from the service he secured employment as a log cutter with the Ozan-Graysonia Lumber Company, of Graysonia, Ark., by which company he had been employed as a log cutter before he entered the army. He worked for this company from July 25, 1919, to some time in 1922, a period of between two and three years. While so employed, he testifies that he earned variously $1, $1.50, and $1.75 per day. In his application for compensation to the Veterans' Bureau, he stated that he made on an average of $4 per day, but that his eyes became so bad in 1927 that he could not work any more. At the trial February 16, 1931, appellee further testified as follows:
E. L. Bloodworth, foreman of the Ozan-Graysonia Lumber Company, testified that in 1922 he discharged appellee because he feared that, because of defective eyesight, appellee might get injured. However, on cross-examination, he said:
It appears that this employment, which continued for several years, was subsequent to appellee's discharge in 1922. While there is some testimony that that employment was interrupted on occasions during this time, there is no showing as to the extent of such interruption.
P. J. Stewart of Bluffs, Ark., testified that he had been acquainted with appellee since 1927 or 1928; that in 1928 appellee was working for the Bruce Lumber Company at Gilmer, at which time he was again under Foreman Bloodworth. Stewart further testified as follows:
The certificate of the examining surgeon at the time of McGill's discharge is as follows:
The enlistment record states, "Physical Condition when discharged; Good."
Appellee admits that, when he was asked about his physical condition at the time of his discharge, he stated that it was good, but said:
This court has had occasion to consider the term "total disability" in many cases. United States v. Worley, 42 F.(2d) 197; United States v. Phillips, 44 F.(2d) 689; United States v. Vance, 48 F.(2d) 472; McNally v. United States, 52 F.(2d) 440; United States v. McLaughlin, 53 F.(2d) 450, 451; United States v. Hairston, 55 F.(2d) 825; United States v. Perry, 55 F.(2d) 819 ( ).
A very recent, and well-considered, case in the Tenth Circuit is Nicolay v. United States, 51 F.(2d) 170, 173. As stated in United States v. Perry, supra: "The courts have quite generally adopted substantially the definition of the Treasury Department as to the term `total disability,' i. e., `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.'"
It is therein further stated that rational interpretation is to be given to the terms used in the Treasury Department definition; that the term "total disability" as used therein does not mean...
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