United States v. Nelson
| Decision Date | 14 March 1939 |
| Docket Number | No. 11201.,11201. |
| Citation | 102 F.2d 515 |
| Parties | UNITED STATES v. NELSON. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Keith L. Seegmiller, Atty., Department of Justice, of Washington, D. C. (Clinton R. Barry, U. S. Atty., of Fort Smith, Ark., G. W. Hendricks, Sp. Asst. to U. S. Atty., of Little Rock, Ark., Julius C. Martin, Director, Bureau of War Risk Litigation, of
Washington, D. C., Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and Thomas E. Walsh, Atty., Department of Justice, of Washington, D. C., on the brief), for the United States.
Charles I. Evans, of Booneville, Ark. (Jeptha A. Evans, of Booneville, Ark., on the brief), for appellee.
Before GARDNER and THOMAS, Circuit Judges, and REEVES, District Judge.
From a judgment for plaintiff on a policy of war risk insurance the government has appealed. The policy was in the face amount of $10,000, and contained the usual provision for the payment of $57.50 per month in the event of the total and permanent disability of the insured while the policy was in force.
Asserting that he became totally and permanently disabled from sundry ailments while the policy was in force, the plaintiff, on October 6, 1932, filed suit for the benefits promised. Issue was joined by an answer containing a denial of such alleged disability.
The appellee enlisted for army service May 11, 1917, and was discharged April 26, 1919. The policy sued on was granted him shortly after his enlistment and expired for non-payment of premiums on June 1, 1919.
While engaged as a soldier on the battle front in 1918 he was exposed to and injured by mustard gas on three different occasions. That he suffered serious effects from these injuries is not questioned, although, when discharged from the army, it was certified that he was suffering no disabilities because of his experience. The appellee testified that he did no work after his return from the service because he was sick and was unable to do manual labor.
In the spring of 1920 he attempted to farm, but sold his crop because he said he was unable to attend to it. The next year he had a "truck patch" and chickens, and then after that, entered vocational training at Fayetteville, Arkansas. This was in 1922, and he continued institutional and project training till 1926 when he again returned to farming, and "tried that a couple of years, and had to quit that, with the health I had."
In 1929, his brother-in-law obtained employment for him as a laborer in an extra gang on the railroad. He quit that work in 1930 and said "from then on I haven't done anything."
Before joining the army the appellee farmed and worked on railroads. The appellee said that:
On cross-examination the appellee said that at times he was able "to do truck work and light work on the farm." He said:
As a part of the appellee's cross-examination, the government introduced sundry documentary exhibits which had been identified by the appellee. On May 5, 1920, the appellee signed an application for compensation which he accompanied with a letter of the same date. He then stated he had been farming since March, 1920, and was still working. He fixed his wages at $35 per month. A subsequent and supplemental application was executed by him on December 17, 1920. In this application he said he had farmed since March 20, 1920, and was still doing light work. He was married on March 20, 1920. Such documents further confirm the testimony of the appellee that he took vocational training at Fayetteville, Arkansas, from 1922 to 1924. During the two years he was a student at Fayetteville the government paid him at the rate of $150 per month. This compensation continued for eight months after his student days at Fayetteville. He then took government project training on a farm and during that period received $130 per month. It appeared that his institutional training was preparatory to project training which he received up until the year 1926.
After the end of his institutional and project training, which covered a period of four years, he farmed for two years, and then for a short period worked as a laborer for the railroad. While he worked for the railroad the work assigned to him was light work, such as "keeping the tools up, flagging, carrying water, and things like that." Appellee did no heavy work, but drew the same wages as the other men. After he had worked for the railroad in 1929 or 1930, appellee supported his family by a small compensation allowed him by the government and from the products of truck patches attended to in part by himself.
On January 18, 1924, the appellee signed an application for reinstatement of his insurance wherein he said that he was not then totally and permanently disabled. He said in his testimony that he did not know of the disability benefits promised in his insurance policy until informed by some one a day or two before he made his claim. No policy was in fact issued to him.
On June 22, 1928, the government, upon the application of the appellee, reimbursed him in the sum of $2.65 for loss of wages occasioned by reporting for a physical examination.
Medical testimony offered by the appellee was chiefly that of Dr. N. E. Armstrong, who began treating the appellee in October, 1919. This witness diagnosed his trouble then as mitral regurgitation and a valvular condition of the heart. The witness also attended him in the summer of 1920, and thereafter, at intervals, except during the time the appellee was taking vocational training at Fayetteville. These attentions continued until about two years before the trial. The witness expressed the opinion that the plaintiff was totally disabled from doing manual labor at the time of the numerous examinations made by him.
As a part of the testimony of this medical witness the government introduced several statements previously made by him. On May 10, 1922, the witness signed a statement wherein he estimated appellee's disability at 33 1/3%. Such an estimate was justified by the witness as follows: "At that time there was always the prospect or hope of prospect of a man recovering from such condition to the point that he is able to go ahead and do manual labor to a certain per cent." He said that his estimate was in accordance with a proper prognosis at the time. The witness identified another statement made by him on May 9, 1927, wherein he fixed the degree of disability as "40 or 50%." Again, on October 6, 1929, he thought the disability was 50%. The witness said that he was hopeful of recovery until early in the year 1933. At that time he said, in reference to appellee's ailments:
Another medical witness who examined the appellee the day before he testified at the trial expressed the opinion that he was then totally disabled to do manual labor "at that time."
The witnesses for appellant supported its theory that the appellee did not become totally and permanently disabled while the policy of...
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