United States v. Taylor, 4565.

• Decision Date: 11 March 1940
• Docket Number: No. 4565.,4565.
• Parties: UNITED STATES v. TAYLOR.
• Court: U.S. Court of Appeals — Fourth Circuit

110 F.2d 132 (1940)

UNITED STATES v. TAYLOR.

No. 4565.

Circuit Court of Appeals, Fourth Circuit.

March 11, 1940.

Young M. Smith, Atty., Department of Justice, of Washington, D. C. (Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and James O. Carr., U. S. Atty., of Wilmington, N. C., on the brief), for appellant.

J. V. Blackwell and D. G. Downing, both of Fayetteville, N. C. (H. C. Blackwell, of Fayetteville, N. C., on the brief), for appellee.

Before PARKER and DOBIE, Circuit Judges, and WEBB, District Judge.

DOBIE, Circuit Judge.

This is a civil action on a contract of War Risk Insurance. The court below denied the motion for a directed verdict in favor of the United States, and there was a jury verdict and judgment in favor of the plaintiff. For the determination of this Court, there is presented a single question: whether there was substantial evidence that on August 1, 1936, the plaintiff was totally and permanently disabled. We think there was, and that the verdict and judgment in the court below should not be disturbed.

Plaintiff, who had served in the military forces of the United States, had been adjudged to be totally and permanently disabled, and, on that basis, the payment of further premiums on the policy by the plaintiff was waived by the United States, and the plaintiff received from the United States monthly benefit payments from 1918 to 1936, when he was informed by the Veterans' Administration in Washington that he was no longer totally and permanently disabled and that the monthly benefit payments heretofore made to him upon that score would be discontinued as of August 1, 1936. The plaintiff's War Risk Insurance Policy, issued to him by the United States, provided that during plaintiff's total and permanent disability, all payment of premiums thereon by the plaintiff should be waived, and that, further, during said period of plaintiff's total and permanent disability the plaintiff should receive from the United States monthly payments at the rate of $57.50 per month. Accordingly, on August 17, 1937, plaintiff instituted this action against the United States to secure the payment of these disability benefits alleged to be due him from the United States under his contract of War Risk Insurance. Just why, or upon what evidence, the Government, after paying disability benefits to the plaintiff for a period covering nearly eighteen years, discontinued these payments, does not appear upon the record.

We believe that a brief survey of the evidence will disclose that there was ample evidence to justify the trial judge in submitting to the jury the question of the plaintiff's total and permanent disability on August 1, 1936, and to support the jury's determination of this issue in favor of the plaintiff.

Dr. Tiffany Barnes, a witness for the plaintiff, testified that when he first saw plaintiff, early in 1935, plaintiff was suffering from arthritis, amnesia, astigmatism and deafness. Certainly this is no trifling combination: two diseases, each affecting one of the most important means of sensory perception — deafness impairing the hearing and astigmatism distorting the vision; one mental affliction, amnesia, involving a form of insanity; and one physical ailment that interfered with his ability to walk.

As to the arthritis (or rheumatism) so Dr. Barnes testified, "it was apparently a chronic condition"; there "was considerable swelling of the right hand and left knee"; "he plaintiff Taylor was not able to get around very much", and as to the effect of this disease on his ability to work, "he was completely incapacitated when I saw him in 1935". As to the plaintiff's amnesia, this same witness stated: "He has a brain lesion which causes his amnesia"; "his mental condition was such that he could not work"; "he would forget where he was, he might be on one job and forget it and go on to another." While, in answer to the question as to the curability of this amnesia, this doctor replied: "No sir, the prognosis is bad in those cases". This deafness, so said Dr. Barnes, amounted to "a roaring in his head and forty per cent loss of hearing". And, owing to the astigmatism (according to same authority) plaintiff's "eyes could not focus, he might be looking at an object and there would be two objects instead of one, and often there was a cross focus"; "just the moving of the ground as he walked along would give him headache". Further, this doctor stated as to the plaintiff: "He was just apparently progressively growing worse"; and in answer to the question, "How about his mental condition as you observed it just from talking with him?" the reply was: "Well, I think the man is in worse shape today than he was."

Two other doctors testified for the plaintiff. Dr. McFayden examined plaintiff two years before the trial and stated that plaintiff was then "mentally incompetent", and the doctor continued: "I have seen him from time to time since then and I do not believe there is very much change in his condition from time to time." Dr. McLeod examined plaintiff in 1936 and saw him again in 1937 and again in 1938. In 1936 this physician considered plaintiff "mentally unbalanced" and said: "I do not think he was capable of taking care of himself"; while he further found plaintiff "had what we call myocarditis, which is just a weak heart, and every little exercise he took it would run away with him". As to plaintiff's ability to work, Dr. McLeod observed: "With the combination of his bad heart, rheumatism and mental condition, I felt he was completely disabled." In connection with his observation of plaintiff at different times in 1936, 1937 and 1938, this doctor stated: "His mental condition and his heart condition have been progressively growing worse"; he also ventured as to plaintiff's mental condition the gloomy prognosis: "I think it is going to get worse"; and he concluded a short cross examination by giving his opinion that plaintiff could not do any work of any kind, mental or physical.

The lay witnesses for plaintiff corroborate and strengthen the expert testimony of the doctors. Jesse Taylor, plaintiff's son, testified as to plaintiff's nervous condition, his insomnia, his mental delusions, his habit of wandering away from home for absences of several days, and, as to the period from 1934 to 1938, he emphatically stated: "I know of my own knowledge that he has done no work during this period because he wasn't...