United States v. Vandver, 12530.

• Decision Date: 20 March 1956
• Docket Number: No. 12530.,12530.
• Citation: 232 F.2d 398
• Parties: UNITED STATES of America, Appellant, v. Edith VANDVER, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

232 F.2d 398 (1956)

UNITED STATES of America, Appellant, v. Edith VANDVER, Appellee.

No. 12530.

United States Court of Appeals Sixth Circuit.

March 20, 1956.

Richard M. Markus, Washington, D. C., Warren E. Burger, Melvin Richter, Washington, D. C., J. Leonard Walker, Louisville, Ky., on brief, for appellant.

David G. Cates, Louisville, Ky., for appellee.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

McALLISTER, Circuit Judge.

The National Service Life Insurance policy upon the life of the insured, Jewell Burns, lapsed on January 23, 1946, by reason of failure to pay the premium due on December 23, 1945. The insured made no application for waiver of the payment of premiums. He died on January 26, 1948. His mother, the beneficiary under the policy, made application for waiver of premiums on March 3, 1948, in accordance with the governing statute, and upon denial thereof, filed this action to recover on the policy. The district court found in her favor and entered judgment in the amount of the policy, from which the government appeals.

The sole question involved is whether the insured's failure to make timely application (on or before August 1, 1947) for waiver of premiums "was due to circumstances beyond his control," under which conditions the failure is excused by Section 802(n), Title 38 U.S.C.A.

The following are the facts in the case: On December 8, 1944, a little more than a month before he was eighteen years old, Jewell Burns, a boy from Kentucky, was inducted into the armed forces of the United States. Six months later, at Pearl Harbor, he became ill, and it was discovered by X-rays that he had cancer. He was thereafter sent to the Naval Hospital at Oakland, California, where, immediately after his admission, an emergency surgical operation was performed upon him and a cancerous tumor removed from the left lower portion of his chest. In the operation, several of his ribs were removed, leaving an instability, or loss of support, over a large area of his chest wall. According to the undisputed expert medical evidence, there is, as a result of such an operation, and because of damage to the nerves, frequently severe pain in the chest wall which may continue for two years or so. The evidence discloses that the section of his side showing the removal of the ribs was about two and a half feet long down his left side; and the boy suffered pain from the time of the operation until he died of the same cancerous condition a year and a half afterward.

Before his induction into the armed forces, the boy enjoyed perfect health, never having had any injury or illness. A couple of months after the operation, he received a discharge from the armed forces because of total disability as a result of the operation; and he came back home to Kentucky. During the time that he was at home, totally disabled, according to the testimony of his mother, "he laid around the house all the time, he didn't have any energy to do anything." He never engaged in any physical exercise; "he complained with his side all the time and he would get up * * * two or three times a night, a lot of times, and I would rub him in alcohol, but it didn't do him any good." His side was "kind of caved in * * * and there was a knot up there" the size of a hen's egg. He had a scar, "eighteen or twenty stitches across his back, down around his side." After he was discharged from the hospital, until the time of his death, he was continuously ill. As his mother said, "I don't think he ever drew a well day." The boy's stepfather testified that when he returned from the hospital, "he felt mighty bad. He didn't go anywhere hardly * * * complained all the time. * * * he had a knot on his side * * * He complained of it hurting," and said that he believed it was getting bigger all the time. When his parents asked him to go out with them, he said no, "he didn't go anywhere, just lay around the house. A lot of times he wouldn't eat no breakfast at all. * * * he acted like he was in a deep study a lot of times, about something all the time. He wouldn't tell us any of his troubles. We hated to bother him because we felt like he was depressed and we didn't want to worry him. * * * He didn't seem like he taken any interest in anything." He went once in a while to the center of the town, never alone, but always with someone else. He never went outside the city in the year and a half that he was home before he died except to go to Lexington when the doctors of the Veterans Administration required him to do so for an examination.

When he left the hospital and received a medical discharge for total disability, the government paid him disability benefits on the basis of 100% disability. This fact does not appear in the stipulation or evidence, but from the arguments of counsel and the findings of the court, we assume that such benefit payments were made. It does not, however, appear from the record that the boy knew he was totally disabled at the time, or that he was receiving disability payments on the basis of 100% disability.

On August 1, 1947, the boy was called up again for another physical examination by doctors of the Veterans Administration. As a result of this examination, his classification of 100% disability was reduced to 30% disability. The admitted fact is that when the boy was operated upon in Oakland, California, and the cancerous tumor was removed, his trouble was diagnosed as Ewing's sarcoma. This is one of the most malignant and insidious types of cancer. It is rarely cured, and is notorious for its ability to spread to other parts of the body. The undisputed medical evidence of Dr. Drye, on the trial, is that he did not believe there was any authenticated case of Ewing's sarcoma, arising in the chest wall, that had ever been cured, and that it was evident that the boy died of Ewing's sarcoma which, at the time of the operation, either had already spread, or had not been entirely removed. The evidence disclosed that between the date of the boy's discharge from the Navy and the date of his death, he showed the various symptoms of the spread of the malignancy through his body, by his lassitude, fatigue, general malaise, and anemia. When he died on January 26, 1948, Jewell Burns was twenty-one years and fifteen days of age.

If the insured in this case did not know what his condition was, and that it was one of total disability, his failure to apply for waiver of premiums does not, as a matter of law, bar his mother, as beneficiary, from the right of applying for such a waiver and having such application allowed. For the beneficiary would have such right on the ground that the insured's failure to apply for such a waiver was due to circumstances beyond his control.

It is plain that the insured did not know that he was suffering from one of the most malignant and incurable cancers known, neither at the time of his operation, at the time of his medical examination on August 1, 1947, and up to his death, nor at any time during his entire illness. The proof of the foregoing is that the doctors themselves, upon their examination of the boy on August 1, 1947, concluded that he was only 30% disabled, although he was in the last stages of Ewing's sarcoma and had only five months to live. If the doctors did not know what his condition was, and what his disability was — if they thought he was cured when he was just about to die, it is evident that the boy did not know that he was totally disabled and dying of a rapidly spreading and incurable cancer. For he was relying completely upon the doctors of the Veterans Administration for advice and information about his condition and treatment of his illness. On these admitted facts, the failure of the insured to apply for waiver of premiums sustained the holding of the district court that such failure resulted from circumstances beyond his control in that he was mentally incapable of knowing or realizing his condition. For it was impossible for the insured to know that he was afflicted with this deadly, incurable disease when the medical authorities of the Veterans Administration were ignorant of that fact during the period from the time of his discharge from the armed forces to the date of his death; and he could not have known that he was totally disabled on August 1, 1947, when his physical examination took place, and when the doctor in charge found that he had only 30% disability. It is true that the insured was not rated as 30% disabled until August 20, 1947; but such rating required the signature of two specialists on claims and occupation, who were not physicians. The medical examination was made on August 1, 1947. The physician of the Veterans Administration at that time found considerable improvement in the condition of the insured and concluded that he was only 30% disabled. On that day, the insured could still have filed application for waiver of premiums if he had been totally disabled. But he could not have known that he was totally disabled on that day, in view of the conclusion of the only physician on whom he relied, that he was only 30% disabled. Yet he was on the brink of death and was, in fact, totally disabled on August 1, 1947.

Lack of knowledge of the existence of disease or of its seriousness and effect, and lack of knowledge of total disability arising in the life of the policy may, as a matter of fact, be found to be due to circumstances beyond the control of the insured, and, hence, excuse the failure to make timely application for waiver. Under such circumstances, the beneficiary may apply for the waiver. Landsman v. United States, 92 U.S.App. D.C. 276, 205 F.2d 18; United States v. Myers, 8 Cir., 213 F.2d 223. "Ignorance of the existence or seriousness of an injury or disease may in a proper case constitute such a circumstance beyond his control — if the ignorance is in fact beyond control." Landsman v. United States, supra, 205 F.2d at page 22.

The government points out...