United States v. Timmons, 7107.

• Decision Date: 31 January 1934
• Docket Number: No. 7107.,7107.
• Citation: 68 F.2d 654
• Parties: UNITED STATES v. TIMMONS.
• Court: U.S. Court of Appeals — Fifth Circuit

68 F.2d 654 (1934)

UNITED STATES v. TIMMONS.

No. 7107.

Circuit Court of Appeals, Fifth Circuit.

January 31, 1934.

George Earl Hoffman, U. S. Atty., and Wm. Logan Hill, Asst. U. S. Atty., both of Pensacola, Fla., and Will G. Beardslee, Sp. Asst. to Atty. Gen., for the United States.

Claude Ogilvie, of Jacksonville, Fla., for appellee.

Before BRYAN, SIBLEY, and WALKER, Circuit Judges.

SIBLEY, Circuit Judge.

This is an appeal from a recovery on a war risk insurance policy for a total and permanent disability, the errors assigned being a refusal to direct the verdict and a refusal to admit in evidence a Veterans' Hospital medical report. The appellant has died pending the appeal, and his executrix has been substituted. The evidence is abundant but not seriously conflicting. The insured, Ivey Preston Timmons, was honorably discharged from the army June 25, 1919, aged twenty-five years. While in the army he had influenza and double pneumonia, and infected tonsils ending in rheumatic fever and the removal of the tonsils, and had not recovered at his discharge. He continued sick, coughing and weak, and unable to work for a year afterwards. He had then a quick, unstable heart, which his attending physician had frequently observed to follow influenza and pneumonia. Before entering the army Timmons had been managing a Ford automobile agency, and in August, 1920, financed by his uncle, he bought the Ford dealership in Kissimmee, Fla., employing a manager but himself acting in an advisory capacity. In 1921 he took a partner. In December, 1922, the business was sold out without much profit, but the bank accounts showed that during the period the business had made total deposits of $174,096.97, and his personal bank accounts showed deposits of $26,431. The latter are not shown to have arisen from any source other than withdrawals from the business. The testimony is that during this period he was still weak and coughing, and lost a day or a week from business from time to time. He maintained his war risk policy, with two lapses and two reinstatements, until December 31, 1921, when it lapsed finally. On January 21, 1922, he applied to the New York Life Insurance Company for insurance, not mentioning the war risk policy among his existing insurances, and affirming in the application that he had had pneumonia and influenza in 1918 but had been permanently cured and was then a proper subject for life insurance. The medical examiner found a slight murmur over the tricuspid valve of his heart. The insurance was accepted by the company, but without disability benefits, Timmons being "marked up fifteen years" as to premium rate, and he declined the policy. Beginning December, 1922, for eighteen months he sold Gray automobiles in connection with his uncle; the lay witnesses saying again that he was weak, easily exhausted, and not able to work all the time. He was sometimes working on a salary and sometimes on a commission, but says he made little money. It appears that during this time in July, 1923, he applied to the Veterans' Bureau for compensation on account of heart and lung trouble originating in the service, and in November, 1923, a government physician found present mitral insufficiency of the heart, with an unfavorable prognosis; but he was rated able to resume his pre-war occupation as salesman. In February, 1924, Timmons applied to reinstate his war risk policy, admitting that he had heart and lung trouble as stated in his application for compensation, but affirming that his health was as good as at the time of default in his premium, and that he was not totally and permanently disabled. On examination heart murmurs and irregularities were found, and the risk was reported poor and declined. During 1925 and 1926 Timmons owned and with the assistance of a woman secretary ran an insurance agency, losing...