United States v. Still, 4766.

• Decision Date: 10 June 1941
• Docket Number: No. 4766.,4766.
• Citation: 120 F.2d 876
• Parties: UNITED STATES v. STILL.
• Court: U.S. Court of Appeals — Fourth Circuit

120 F.2d 876 (1941)

UNITED STATES v. STILL.

No. 4766.

Circuit Court of Appeals, Fourth Circuit.

June 10, 1941.

Thomas E. Walsh, Atty., Department of Justice, of Washington, D. C. (Claud N. Sapp, U. S. Atty., and Henry H. Edens, Asst. U. S. Atty., both of Columbia, S. C., and Julius C. Martin, Director, Bureau of War Risk Litigation, and Fendall Marbury, both of Washington, D. C., Sp. Atty., Department of Justice, on the brief), for appellant.

C. T. McDonald, of Florence, S. C., and Warren E. Miller, of Washington, D. C. (R. K. Wise, of Columbia, S. C., on the brief), for appellee.

Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges.

DOBIE, Circuit Judge.

This is an appeal by the United States of America (hereinafter called appellant) from a judgment of the District Court of the United States for the Eastern District of South Carolina in favor of Carroll O. Still (hereinafter called appellee) in a suit to recover permanent disability benefits under a $10,000 contract of war risk term insurance issued to appellee during the period of his naval service between May 10, 1917, and December 12, 1918.

Prior to entering the naval service in 1917, appellee had attended high school and college and had been engaged as a mechanic and general utility man with an automobile agency in Columbia, South Carolina. He held the rank of Chief Machinist Mate in the navy and served as an instructor at an air field in Florida. After his discharge from the service on December 12, 1918, he was hired as a traveling salesman by the automobile agency where he had been previously employed. His employer at this time, James M. Black, testified that appellee always returned from trips with a headache and a flushed face; that appellee was "far from normal * * * so far as health was concerned"; and that he finally let appellee go in 1920 or 1921, after obtaining a connection for him with an agency in Aiken, South Carolina.

Appellee married in 1920. He remained with the agency in Aiken for six or eight months and then returned to his home in Florence, South Carolina, where he was associated for a time with the Florence Cadillac Company.

From August 1, 1924, to June 3, 1928, appellee was employed by the Kelly-Springfield Tire Company as a traveling salesman in South Carolina. He was paid a monthly salary of $200 until September 1, 1925, and of $225 until the date he left the company. Appellee testified that throughout this period, ever since he had left the naval service, he was suffering from "severe migraine headaches, nausea and pain in the chest." He stated that the district manager of Kelly-Springfield had to ride with him part of the time in 1926 and 1927; that, considering the time he spent in the hospital, he was forced to take off an average of three days out of every week that he worked for Kelly-Springfield; that sometimes he became disabled while on the road and would consequently have to remain in his hotel room for a couple of days; that he had left Kelly-Springfield because he "couldn't produce." Appellee's wife testified that whenever he returned from a trip on the road he was pretty well worn out; that he usually went to bed and was visited by a doctor over the week-end; that on numerous occasions he came home during the middle of the week; that his physical condition was growing worse.

Appellee then sold cars on a commission basis for the Chevrolet agency for about two or three months. From March 16, 1929, to February 14, 1930, he was employed as a traveling salesman for the Fisk Tire Company at a monthly salary of $200 and expenses. Appellee's wife testified that during this eleven-month period his condition continued to grow worse; that he would feel better when not working; that he had severe pains, headaches and nausea; that he was examined medically many times; that, after spending the week-end in bed, appellee had difficulty in getting out of bed on Monday morning to go to work.

In the fall of 1930, appellee formed a partnership with a pharmacist to engage in the drug business. They purchased a drug store but, after four or five months, appellee's partner purchased his interest. The former partner, Dr. Claude E. Harris, testified that the partnership was dissolved because of appellee's physical inability to stay at the store.

Since 1930, appellee has done no work. He was admitted to the Veterans' Hospital at Lake City, Florida, in December, 1930, and was discharged therefrom on February 24, 1931. While at the hospital, he applied for, and obtained, disability benefits on a policy of commercial insurance. These benefits were paid to him until 1937, at which time the company reached a settlement with him. Appellee testified that the company "forced" him to settle because it was of the opinion that he was totally disabled at the time he took out the policy, June, 1926. It is admitted that at the present time appellee has a severe and totally disabling cardiac condition. Every medical examination which he has had since 1931 has shown a progressively degenerating heart.

Appellee alleged in his complaint that he had been totally permanently disabled since December 12, 1918, the date of his discharge from the naval service. However, it was stipulated at the trial that he had maintained his policy in force by premium payments through June 30, 1927, and the case was tried below, without a jury, on the sole issue of whether total permanent disability had occurred on or prior to that date. Judge Wyche entered findings of fact and conclusions of law in favor of appellee, finding that he was totally permanently disabled on June 30, 1927, from heart trouble. A judgment was entered awarding appellee monthly insurance benefits from the last-mentioned date.

Appellant maintains that the finding of the trial court that appellee was totally permanently disabled on June 30, 1927, is "clearly erroneous." Under Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, governing jury-waived cases, this court will not disturb the findings of fact of the trial court unless they are clearly against the weight of the evidence. Aetna Life Ins. Co. v. Kepler, 8 Cir., 1941, 116 F.2d 1, 4, 5. See McDaniel v. United States, 7 Cir., 1939, 108 F.2d 450, 452; Manning v. Gagne, 1 Cir., 1939, 108 F.2d 718, 720, 721. This is only the recognition of a rule long followed by appellate courts in reviewing equity cases. See Guilford Const. Co. v. Biggs, 4 Cir., 1939, 102 F.2d 46, 47; cf. Wolf Mineral Process Corp. v. Minerals Separations North American Corp., 4 Cir., 1927, 18 F.2d 483, 486.

The burden rested upon appellee to prove below that before the policy had lapsed on June 30, 1927, he had become totally and permanently disabled. See Miller v. United States, 1935, 294 U.S. 435, 440, 55 S.Ct. 440, 79 L.Ed. 977; United States v. Diehl, 4 Cir., 1932, 62 F.2d 343, 345. Also, Rodgers v. United States, 4 Cir., 1939, 104 F.2d 884; United States v. Lawson, 9 Cir., 1931, 50 F.2d 646, 651. Some of the evidence offered on this point has already been outlined in the above history of appellee's work record. The remaining evidence in brief is stated below.

Appellee testified that ever since leaving the service he has suffered from "severe migraine headaches, nausea and pain in the chest"; that he started suffering from these ailments at the time he began working for Mr. Black in 1918; that his condition in 1926 and 1927 was about the same as it is now; that he takes medicine for his pains every day. On cross-examination, appellee stated that when he first visited the government physician in May and October, 1921, and in May, 1922, the physician, Dr. Hicks, knew of his headaches. However, he admitted that when he visited the Veterans' Bureau for the examination of July 12, 1927, he had only complained about his feet.

Mrs. Carroll O. Still, appellee's wife, testified that at the time of their marriage in 1920 "he wasn't what you would call healthy"; that in 1926 he had been carried to the hospital in an unconscious state; that his condition had been gradually becoming worse. August W. Elliott, a friend of appellee and a boarder in appellee's home, testified that appellee's condition today "has certainly been no better" than what it was back in 1924, 1925, and 1926.

J. J. Clemmons, a local insurance agent, testified for appellee and stated that he had sold to appellee in 1924 and in 1926 an accident and health policy; but that in 1925, for an unknown reason, the insurance company had rejected appellee's application for life insurance. Fred W. Willis, another local insurance agent, stated that he had discussed life insurance with appellee in 1926; that, inasmuch as appellee was having headaches, he did not think there was any use in taking appellee's application. Mr. Willis did testify, however, that one of his associates had sold to appellee the same insurance that he, Willis, had formerly suggested; that he believed that the insurance doctor, with knowledge of appellee's headaches, had passed appellee after a physical examination.

Appellee offered the medical testimony of two doctors. The first, Dr. L. B. Salters, testified that in 1926, at the time that appellee was carried to the Saunders Memorial Hospital in an unconscious state, he had given appellee a respiratory stimulant but had made no diagnosis of appellee's general condition. The second doctor, Dr. John L. Bruce, testified that in June, 1928, he had examined appellee and found that he was then having a severe migraine headache, was vomiting, and was complaining quite a bit of pain in the upper abdominal region; that, at that time, a preliminary diagnosis was made of an ulcerated stomach and that the headache was of an unknown origin. Dr. Bruce also testified that he really began treating appellee in 1931; that an electrocardiogram was then made of appellee; that he diagnosed appellee as having from 1931 to date a myocarditis, a heart condition, the generalized...