United States v. Pullig

• Decision Date: 19 January 1933
• Docket Number: No. 9535.,9535.
• Parties: UNITED STATES v. PULLIG.
• Court: U.S. Court of Appeals — Eighth Circuit

63 F.2d 379 (1933)

UNITED STATES v. PULLIG.

No. 9535.

Circuit Court of Appeals, Eighth Circuit.

January 19, 1933.

George T. Sullins, Asst. U. S. Atty., of Ft. Smith, Ark. (William N. Ivie, U. S. Atty., of Ft. Smith, Ark., and W. C. Pickett, Atty. Veterans' Administration, of Washington, D. C., on the brief), for the United States.

Wade Kitchens, of Magnolia, Ark., for appellee.

Before KENYON, GARDNER, and SANBORN, Circuit Judges.

GARDNER, Circuit Judge.

This is an action to recover on a contract of war risk insurance.

James Lawson Pullig, the insured, enlisted in the United States Army December 15, 1917, and was discharged August 18, 1918, on a surgeon's certificate of disability because of dementia prÊcox, and poor physical condition. It is alleged in the complaint that while plaintiff's insurance was in full force and effect he had become totally and permanently disabled, and unable to follow continuously a substantially gainful occupation, in that "plaintiff's mind was affected and circulation has been and is bad and he is always cold, and his stomach is diseased, his bowels are in such condition that they slough off, and he suffers at all times, and by reason of his condition is nervous and unable to sleep and unable to eat solid food, and suffers from other diseases unknown to plaintiff." The insurance was in force until January 31, 1922.

At the close of all the evidence, the government moved for a directed verdict, which the court overruled. The court in its instructions withdrew from the jury the question of disability resulting from the mental condition of the insured, but submitted to it the question of his physical disability. The jury returned a verdict in favor of the plaintiff, and the government has appealed, assigning as error the action of the lower court in refusing to grant its motion for a directed verdict.

Medical witnesses called on behalf of the insured testified that he was afflicted with an ailment called colitis, an inflammation of the colon. His own testimony indicates that he has been afflicted with this trouble since 1919. It has from time to time caused him to have abnormally frequent bowel movements, accompanied by pain and suffering. These attacks might last several days, followed by a period of freedom from them. There was testimony that he suffered from headaches, poor circulation, nervousness, passage of blood and mucous, and that he seemed easily to fatigue. Lay witnesses gave their opinion that he was unable to work at times. Three physicians were produced as witnesses on behalf of the insured.

Dr. Kitchens testified that insured came to see him in 1923, a year after the policy had lapsed. He complained of bowel trouble, and wanted the doctor to fix him something for it. The doctor made no examination, but prescribed something for temporary relief. Insured returned a time or two thereafter to see this doctor, and reported that the medicine had not helped him. The doctor expressed the opinion that he was not physically able to work. On cross-examination he testified: "Q. You would also say, Doctor, that you do not think he is totally and permanently disabled? A. Yes, I say that."

On redirect examination he was asked: "Q. If total disability under the law is such an impairment of mind or body as renders it impossible for a disabled person to follow continuously any substantially gainful occupation, if that be total disability, in this case would you say he was totally disabled?" His answer was: "I would."

Dr. Souter testified that the insured came to him in March, 1922, some three months after the policy had lapsed, with reference to a rectal abscess. He told this physician that he had colitis, but the doctor did not examine him for that. Insured returned occasionally later to get something for relief of colitis. On direct examination this witness testified that from what he saw or observed of insured he did not think he was physically able to work, but on cross-examination he said he based that on the fact that insured came to him in 1922 with a rectal abscess.

Dr. Agnes Jackson, insured's sister, was called as a medical witness. While she purported to give some medical testimony with reference to the insured's condition in 1919, it appears that she did not graduate from a medical school and was not admitted to practice medicine until 1924, and had never been admitted to practice in the state of Arkansas. Her testimony is very indefinite as to the time to which it refers, but, without giving the time to which her testimony refers, she in part testified as follows: "In my opinion he was suffering from colitis. Colitis is an inflammation of the colon. * * * I consider it purely of nervous origin. * * * Colitis is not always permanent. It could be chronic. When it is brought on by nervous trouble as his is, I find it chronic. In my opinion it is a permanent condition. It has been so for about ten or twelve years at least. * * * Whether colitis can be cured is owing to the origin. There are two forms at least. He has a continuous form, we call that chronic. The acute form is not of such long duration. Inflammation of the colon continuously makes a chronic case. It was nervous trouble in his case."

She testified that she had given the insured a thorough physical examination, but had never given him any treatment, and she expressed the opinion that he was not able to work. When she made this examination does not appear, but, as she was not a practicing physician until 1924, we must assume that the examination was made after that date.

Dr. Pat Murphy, called as a witness for the defendant, testified that he had examined insured seven times, the first time in March, 1920, and the last in November, 1927, but all of his examinations were as to insured's mental condition. He testified, however, that colitis was a curable disease under proper treatment.

After his discharge from the Army, and until September or October, 1919, insured was in the State Hospital for Nervous Diseases at Little Rock, Arkansas. Following this he lived for about a year at De Queen, Arkansas, where he worked in a cleaning and pressing shop for about six months, having contracted to buy a third interest. He was to have a salary of $100 a month if the business made it, but he in fact made between $50 and $60 per month. In November, 1920, he married. Later he went to Houston, Tex., for examination, remained there about four months, and returned to Waldo, Ark., in 1921. He then went to work in an auto repair shop, and then again entered the cleaning and pressing business. He said that he was unable to work in the auto repair shop. From 1921 to 1928 continuously, he ran a cleaning and pressing business in Waldo, which, he testified, averaged him a profit of $40 to $65 a month. In 1928 he sold his business and went to Shreveport, La., where he worked for a short time as an auto salesman, but within a year he returned to Waldo, Ark., where he has been engaged in the cleaning and pressing business on his own account, making, he testified, an average of $35 to $40 a month. Concerning his work at De Queen, where he seems to have commenced work in September or October, 1919, he testified as follows: "I would go down in the morning, go out and get clothes in that Ford and bring them in. * * * When we carried the clothes we did not have to collect any money unless they wanted to pay. I drove the car. The trips we had to make were made at a distance of ten or twelve blocks. Driving a car seemed to make me weak. Sometimes I would go out and take my time. I did not want my partner to know that I was not really stronger than I was. Sometimes I was gone longer than was necessary. I would feel able to drive and bring the work in. I did not do any very hard work. I was not able to do any. * * * Whenever I get so weak that I am not strong enough to try to do anything, I keep off my feet. I try to keep as cool as possible. If I get a little warm that starts the poisons in my stomach. It weakens me and makes my thinking slow. It prevails all the time but is worse when I am on my feet."

As to his shop equipment and later activities, he testified that his equipment consisted of a pressing machine, two or three tubs, some brushes and soap, and a cleaning solution. Besides cleaning and pressing, he made alterations and took measurements for men's clothing and sent them in. He testified concerning his practice as follows: "I am in and out of the shop practically all the time except once in a while when I feel worse. Every week or so I do not feel able to go to the shop. I am off from a day to a couple of days. I am there the bigger part of the time. I am not there 90% of the time. I would be off a day or two each two weeks. I am the general overseer of the plant and look out for the business so far as the working part of it is concerned. I look after the financial end of it."

In later years his wife kept the books, and he has had the help of a man in the shop all the time.

Fay Jarnagan testified that he had worked for insured three months in 1927; that he did most of the work of pressing and cleaning. On cross-examination he testified as follows: "He (Pullig) worked while I was there. He did not run the presser, I ran it myself. He did the book work and the machine work. He did not collect the clothing. I did that myself. He used the machine. He altered clothing and changed them and took measurements for suits, collected, and kept the books, and did some of the pressing."

Other witnesses who had worked for insured at times, and others who had observed him, testified to his doing pressing, collecting clothes, keeping books, and...