United States v. Ware, 9159.

• Decision Date: 26 March 1940
• Docket Number: No. 9159.,9159.
• Citation: 110 F.2d 739
• Parties: UNITED STATES v. WARE.
• Court: U.S. Court of Appeals — Fifth Circuit

110 F.2d 739 (1940)

UNITED STATES v. WARE.

No. 9159.

Circuit Court of Appeals, Fifth Circuit.

March 26, 1940.

Thomas E. Walsh, Atty., Department of Justice, of Washington, D. C., and Harvey G. Fields, U. S. Atty., and Malcolm E. Lafargue, Asst. U. S. Atty., both of Shreveport, La., for appellant.

Charles A. McCoy and Sam H. Jones, both of Lake Charles, La., for appellee.

Before HOLMES and McCORD, Circuit Judges, and MIZE, District Judge.

MIZE, District Judge.

Appellee entered the United States Army on April 24, 1918 and was discharged on June 24, 1918. He applied for and obtained on May 6, 1918 a War Risk term insurance policy in the sum of $5,000. Premiums on this policy were paid for the months of May and June, 1918 and under the terms of the grace period the policy expired July 31, 1918, unless on that date he was totally and permanently disabled from following continuously any substantially gainful occupation. He applied for disability benefits for the first time on June 18, 1931. This application was rejected August 26, 1931. Plaintiff filed his suit in the District Court on September 11, 1937, in which he alleged that his policy had matured by reason of his total permanent disability on or before June 24, 1918 and alleged that his disabilities were myocarditis, hypertension, cardiac hypertrophy, bronchitis, nephritis, valvular heart disease, and other diseases, disabilities and ailments, inducing arteriosclerosis and other disturbances.

Issue was joined upon the question as to whether or not he was totally and permanently disabled on or before July 31, 1918. Upon the trial of these issues the jury found for the appellee and judgment was entered accordingly.

The question presented to this court is whether or not there was sufficient evidence to authorize the court below to submit the question to the jury. The proof shows rather conclusively that at the time of the filing of the suit and for sometime prior thereto he was totally and permanently disabled, but it wholly fails to show that at the time of the lapse of the policy on July 31, 1918 he was totally disabled. On the contrary, the record affirmatively shows without dispute that for a period of ten years he did follow a substantially gainful occupation without very much interruption, and earned continuously an average monthly income of $60 per month. Before he entered the army he was a day laborer, engaged principally in work around sawmills and did heavy work.

The government contended in the court below that at the time he was inducted into the service he was suffering with some form of heart trouble. However, he was admitted to the army after passing a physical examination and entered upon the usual duties and functions of a soldier. After he entered the military service and while on his second hike, he fell out with some kind of stroke and was carried to the base hospital and there remained forty days without being required to do any further drilling of any kind, and was then discharged from the service. The surgeon's certificate of discharge recorded that he was suffering from myocarditis and that in view of his occupation he was rated at that time as being one-half disabled from earning his subsistence. He soon returned home and remained in bed for some twenty days, then commenced work for a Mr. Pearce, who operated a garage. He narrates his conversations with Mr. Pearce in the following language: "So I come up on Ryan Street and asked Mr. Pearce for a job and he told me `What can you do.' I said, well I am not a mechanic. I never done no kind of work like this, but I want to try to do something. I said, I am sick, but I want to do something that I can make a living at." Thereafter Mr. Pearce gave him a job of doing light work around the garage. He testified that he was not able to work continuously and that at times he would get off weeks at a time that he could not do anything. However, the record shows without dispute that he was paid continuously throughout a period of ten years at a rate of approximately $60 per month without interruption. His duties working for Mr. Pearce were composed of sweeping, answering the telephone, handing wrenches to the mechanic, and other light work of that nature. He did not do any heavy work.

He has not done any kind of work since 1928, except that during the year 1932 he owned a Plymouth sedan which he operated as a taxi cab, but in which business his boy did most of the work. In the operation of the taxi business he averaged from $5 to $7 per week.

Appellee was examined by Dr. Kushner, a general practitioner, sometime in 1921 and in 1922. He stated that he examined him at various times since and found his blood pressure was high and that he has heart disease; at times you could tell definitely that he has valvular heart disease and at other times it could not be told. In the opinion of the doctor his ailment is myocarditis. That at times appellee was worse than at others, and that in his opinion he was not in shape at any time to do hard manual labor. The doctor was asked if he would be able to express in anything like a definite opinion, having examined the man in 1921 or 1922, as to what his condition was in July, 1918, and answered that he could not; that heavy work would have been injurious to him and he believed that there were occasions when the light work had hurt him, but a person with myocarditis can do some light work, if it does not require too much exertion.

There was other medical testimony on behalf of the plaintiff showing that the plaintiff was suffering from myocarditis as far back as 1918. Among others who testified was Dr. Clements, but he stated that he could not say that the work that appellee had done during the ten year period had hurt him any. All the medical testimony was in accord that myocarditis is permanent, and will prevent one from doing heavy work.

The fact that the appellee was partially disabled does not entitle him to a judgment under a War Risk insurance policy. The decisions to the effect that in order to recover on a War Risk insurance policy the disability must be permanent and total are so numerous that it is almost needless to cite them. When the record of one of these claimants under such a policy shows without conflict that he has in truth and in fact followed a substantially gainful occupation continuously over a long period of time, he is not entitled to recover. His work record, when shown to be substantial, and without injury, overcomes the testimony of experts that he was not able to work. United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617; Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492; United States v. Alvord, 1 Cir., 66 F.2d 455; United States v. Taylor, 5 Cir., 87 F.2d 994. It is true that an occasional period of work done by claimant is not sufficient to negative total permanent disability when there is medical evidence or other evidence tending substantially to show permanent total disability, but when he works for a substantial length of time without injury and compensation is shown in any great amount, then these factors outweigh expert opinions....