United States v. Smith, 6484.

• Decision Date: 23 February 1932
• Docket Number: No. 6484.,6484.
• Citation: 81 ALR 926,55 F.2d 141
• Parties: UNITED STATES v. SMITH.
• Court: U.S. Court of Appeals — Ninth Circuit

81 ALR 926, 55 F.2d 141 (1932)

UNITED STATES v. SMITH.

No. 6484.

Circuit Court of Appeals, Ninth Circuit.

January 18, 1932.

Rehearing Denied February 23, 1932.

Anthony Savage, U. S. Atty., and Cameron Sherwood, Asst. U. S. Atty., both of Seattle, Wash. (William Wolff Smith, Sp. Counsel, and Bayless L. Guffy, Atty. Veterans' Administration, both of Washington, D. C., and Lester E. Pope, Atty. Veterans' Administration, of Seattle, Wash., of counsel), for the United States.

Graham K. Betts, of Seattle, Wash., for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and WEBSTER, District Judge.

WILBUR, Circuit Judge.

This is an appeal from a judgment against the government on a war risk insurance policy for $10,000 predicated upon the allegation and proof that the insured was totally and permanently disabled from the date of his discharge, which was during the life of the policy.

The evidence shows that the insured enlisted in the Army in July, 1918, and that he was honorably discharged November 20, 1918, the record of his discharge stating that he was suffering from a nervous disease. Shortly after his enlistment he was given the usual typhus inoculation, and following such inoculation, insured was confined to the hospital where he received a spinal puncture, and remained in the hospital until his discharge. The medical history of the insured shows that he was treated for syphilis soon after his enlistment, and the medical testimony introduced at the trial shows that he was suffering from paresis. One of the medical experts, Dr. Royal B. Tracy, testified that in his opinion appellee was suffering from general paresis at time of his discharge.

After his discharge, the evidence shows, he was nervous, that he mumbled in his speech and could not hold a conversation, that he had lost weight, that he tried to drive a truck for his brother but was not able to do the work. He was employed by the Great Northern Railway Company as a switchman in November, 1918, the job he had held before his enlistment, and worked there until November, 1920, not always full time, but the greater part of the time, receiving the same wages as other men who were doing the same work. However, the witnesses who had worked with him testified that he made many mistakes, some very serious ones; that he was unreliable and acted like a man who was demented. These co-workers testified that they overlooked his mistakes, relieved him from some of his work, and carried him along because he belonged to the Union, and never made any complaint to the officers of the company, because they did not want him to lose his position. In short, that he was not able to do the work.

He was committed to Steilacoom Hospital for the feeble-minded in July, 1921, where he remained until his death on September 30, 1921.

In plaintiff's amended complaint there are two causes of action set forth, the first, based upon allegations that the insured was totally and permanently disabled from the date of his discharge and during the period the policy was effective from payment of monthly premiums. The second cause of action is based upon allegations that the Medical Board of Review and Board of Appeals of the United States Veterans' Bureau had made a compensation rating in favor of the deceased from a date prior to the lapse of his policy, to wit, from the date of his discharge, which rating was sufficient to pay premiums on his policy to and including the date of his recognized total and permanent disability to wit, July 27, 1921, which compensation was due and uncollected on said date. That, by reason of the foregoing, the said policy of insurance sued upon did not lapse, but was kept in full force and effect until the date of recognized total and permanent disability and thereafter until the date of his death, to wit, September 30, 1921, by reason of and under the terms of section 305 of the World War Veterans' Act as amended (38 USCA § 516). The District Court having found for the plaintiff on the first cause of action, it was unnecessary to consider the second cause of action set out in the complaint, and it was accordingly disregarded. It will be considered here only in disposing of appellant's first assignment of error, which is that the lower court erred in overruling its objection to the introduction of bureau ratings, on the ground that they were immaterial. This evidence was clearly admissible in proof of the second cause of action set forth in the complaint and, even though not competent to show total and permanent disability, it was not error to admit such bureau ratings. Silberschein v. U. S., 266 U. S. 221, 45 S. Ct. 69, 69 L. Ed. 256; Armstrong v. United States (C. C. A.) 16 F. (2d) 387; Maddox v. United States (C. C. A.) 16 F.(2d) 390.

The second assignment of error is that the court erred in overruling appellant's objection to the introduction of bureau reports of physical examinations of plaintiff on the ground that they were not properly identified, and on the further ground that the government had no opportunity to cross-examine the physicians who made the reports. The first ground of objection, namely, that the reports were not properly identified, is not open to the appellant here because not urged in the court below. Noonan v. Caledonia Min. Co., 121 U. S. 393, 400, 7 S. Ct. 911, 30 L. Ed. 1061. The other ground of objection to the bureau reports is without merit, as it has been held in numerous cases that reports of physical examinations made by the Veterans' Bureau may be admitted in evidence, in war risk insurance cases. Runkle v. U. S. (C. C. A.) 42 F.(2d) 804; United States v. Cole (C. C. A.) 45 F.(2d) 339; United States v. Stamey et al., 48 F.(2d) 150 (C. C. A. 9). The ground of objection urged in appellant's brief that this report is inadmissible as containing hearsay statements and self-serving declarations of the appellee to the Veterans' Bureau was not included in the assignments of error, and therefore is not before this court for review (Wight v. Washoe County Bank, 251 F. 819 C. C. A. 9), nor is the position tenable.

The third point raised by the appellant is covered by the following additional assignment of error: "1. That the trial court erred in entering judgment in favor of the plaintiff in violation of the provisions of § 300 of the World War Veterans' Act and United States Code Annotated, Title 38, § 511, in that Lilly Gladys Whitehead was the only beneficiary designated in the policy of insurance herein sued upon."

Assuming that the wife, Lilly Gladys Whitehead, had been named by the veteran as the beneficiary of his insurance, she would be entitled to the monthly payments accruing after his death, and because of such death, so long as she survived, until the total number of payments covered by the policy had been made. The estate of the decedent would be entitled to all monthly payments accruing before his death, and, in the event the beneficiary died before she had received the total number of payments called for by the poliey, the estate would be entitled to the remaining payments. (Section 303 World War Veterans' Act, 43 Stat. 1310 38 USCA § 514).

We will first consider the relative rights of the plaintiff and of the beneficiary. In regard to the rights of the beneficiary, the record is somewhat confusing, both in the trial court and on appeal. Before adverting to this situation, we would call attention to the claims made by the respective parties in their briefs in this court in reference thereto. The appellant claims that the court erred in awarding judgment for the installments accruing subsequent to the death of the insured. In support of this contention, it is said: "Plaintiff adduced no proof that no person within the permitted class was designated as beneficiary of the contract sued on, or that such person was designated and did not survive the insured, or survived him, but died prior to receiving all the installments due under the contract. Therefore, the court erred in rendering judgment for plaintiff for all the installments accruing subsequent to the death of insured" — citing, in support of the right of the divorced wife, our decision in United States v. Conklin, 27 F.(2d) 45. The appellee answers this contention as follows: "This alleged error appears to have been an afterthought on the part of the defendant. It was not made the basis of any objection at the trial, nor was the matter apparently considered of any moment during the course of the trial. The judgment was O.K.'d by the attorney for the defendant as well as by the attorney for the United States Veterans' Bureau. No amendment was ever proposed, and it was not urged or suggested as ground for a new trial and at the...