United States v. McPhee

• Decision Date: 11 March 1929
• Docket Number: No. 5635.,5635.
• Citation: 31 F.2d 243
• Parties: UNITED STATES v. McPHEE.
• Court: U.S. Court of Appeals — Ninth Circuit

31 F.2d 243 (1929)

UNITED STATES v. McPHEE.

No. 5635.

Circuit Court of Appeals, Ninth Circuit.

March 11, 1929.

Anthony Savage, U. S. Atty., and Tom De Wolfe, Asst. U. S. Atty., both of Seattle, Wash. (Wm. Wolff Smith, Gen. Counsel, U. S. Veterans' Bureau, and C. L. Dawson, Atty., U. S. Veterans' Bureau, both of Washington, D. C., and Lester E. Pope, Regional Atty., U. S. Veterans' Bureau, of Seattle, Wash., of counsel), for the United States.

W. G. Beardslee, of Seattle, Wash., and Alvin Gerlack, of San Francisco, Cal., for appellee.

Before RUDKIN and DIETRICH, Circuit Judges, and BEAN, District Judge.

BEAN, District Judge.

This is an appeal from a judgment in favor of the appellee in an action on a war risk insurance policy. The appellee moved this court for an order requiring the court below to send up its instructions to the jury. The instructions of a trial court are not a part of the record unless made so by bill of exceptions. That was not done in this case. This court has therefore no authority to make the order requested. Bennett v. Riverland Co. (C. C. A.) 15 F.(2d) 491.

The appellee entered the naval service of the United States on January 3, 1918, and was honorably discharged on September 26, 1919. After entering the service he applied for and there was issued to him a war risk insurance policy for $5,000, payable in monthly installments in case he should become totally and permanently disabled while it was in force. The premiums were payable monthly. They were paid up to and including the month of September, and under the regulations of the Department, in pursuance of law, the next premium became due and payable on the 1st day of October, and the assured had the entire month in which to make such payment as "a grace period"; but if the premium was not paid before the expiration of such grace period the insurance would lapse and terminate. No payment of the premium on the policy was made after appellee's discharge, and therefore the policy lapsed and terminated at midnight on October 31st.

At the close of the testimony appellant moved for a directed verdict in its favor on the "ground that a sufficient showing has not been made to establish a prima facie case, in view of the facts that according to the evidence submitted by the plaintiff himself, he was discharged on or about September 22, 1919, and paid no premiums on his insurance after discharge; and that the first evidence of disability was in January, 1920, long after the insurance had lapsed." This motion was overruled, and the case submitted to the jury, and in due time it returned a verdict as follows: "We the jury in the above entitled cause find for the plaintiff and fix the date of the beginning of his permanent and total disability from November 1, 1919."

Based on this verdict judgment was rendered in favor of the appellee.

It is manifest that the verdict does not support the judgment. The sole question of fact in the case was whether the plaintiff was totally and permanently disabled during the life of the policy. The policy expired at midnight on October 31, 1919, for failure to pay the premium thereon. To enable the appellee to recover thereon, it was incumbent upon him to show that he was totally and permanently disabled at or before that time. The jury found that the beginning of his disability was November 1st, and that was after the policy expired.

It is suggested that the finding of the jury of the date when the appellee's total and...