United States v. Worley
| Decision Date | 19 May 1930 |
| Docket Number | No. 8558.,8558. |
| Citation | 42 F.2d 197 |
| Parties | UNITED STATES v. WORLEY. |
| Court | U.S. Court of Appeals — Eighth Circuit |
F. H. Wagener, Regional Atty., United States Veterans' Bureau, and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb. (James C. Kinsler, U. S. Atty., and George A. Keyser and Edson Smith, Asst. U. S. Attys., all of Omaha, Neb., and Philip M. Aitken, Asst. U. S. Atty., of Lincoln, Neb., on the brief), for the United States.
Charles Battelle and Clarence T. Spier, both of Omaha, Neb., for appellee.
Before VAN VALKENBURGH and BOOTH, Circuit Judges, and DEWEY, District Judge.
Emmett A. Puckett enlisted in the army of the United States April 2, 1917, and served as a private in the 139th Infantry until March 18, 1918, at which time he was discharged because of physical disability. It is stated that this disability was caused by an accident. While in the service, a team of mules ran away with him, and he sustained a serious injury to his back, which deprived him of any practical use of his lower limbs, and ultimately resulted in his death January 7, 1927. While in the army, Puckett applied for and obtained term insurance under the War Risk Insurance Act in the sum of $10,000. This insurance contract was in the usual war risk form. It is conceded that no certificate, much less policy, was ever issued to the assured. Receipts were, given for payments taken out of the enlisted man's pay; the insurance granted being governed and controlled purely by statutes applicable thereto. The effect of this contract was that, in the event of death or total and permanent disability while the contract was in force, payments of $57.50 monthly would be made, to the beneficiary in case of death, and to the assured in case of total and permanent disability during the period of such disability. Act Oct. 6, 1917, 40 Stat. 398, 409. This insurance contract was in force at the date of his discharge; the premiums having been paid to April 1, 1918. Thereafter no premiums were paid. About January 7, 1924, Puckett filed with the Veterans' Bureau a claim for total permanent disability from the date of his discharge. This claim was rejected December 29, 1926.
April 23, 1927, the mother of the deceased soldier brought suit, as administratrix, to recover for his estate the unpaid monthly payments, under the terms of his insurance contract, from April 1, 1918, to February 1, 1927, aggregating $6,095.00. June 22, 1927, counsel for the government moved the court to require the mother to be joined as a party and to assert in her individual capacity any claim she might have as beneficiary. This motion was granted, and, in compliance with the court's order, the mother intervened July 5, 1927, praying judgment in the sum of $3,905, the aggregate of the installments maturing and to mature after the death of the assured. October 31, 1928, the jury found for the plaintiff and the interevener in the full amounts claimed. December 28, 1928, the District Court, upon motions of plaintiff and intervener, entered a supplemental judgment, in which it found that the plaintiff as administratrix was entitled to have and recover interest at the rate of 7 per cent. per annum upon the insurance installments from the date they were due, that the first monthly installment was due April 1, 1918, and that the amount of this interest which the plaintiff should recover up to October 31, 1928 was the sum of $2,655.99, making a total judgment in favor of the plaintiff of $8,750.99, the same to bear interest at the rate of 7 per cent. per annum from October 31, 1928. It next found that the intervener was entitled to recover interest in like manner upon deferred payments due her from the date the same matured until paid, that the first installment was due her February 1, 1927, and that the amount of interest so due intervener upon such installments to October 31, 1928, was the sum of $84.36. The court further found as follows respecting the claim of the interveners:
"That the intervener recovered a judgment as beneficiary under said insurance policy in the sum of Three Thousand Nine Hundred Five ($3,905.00) Dollars and that of this amount there was, on October 31, 1928, the date of the rendition of the judgment herein, past due and owing to the intervener, installments the sum of $1,265.00, and that she is entitled to interest upon this amount at seven per cent. per annum until paid, and that the balance of said Three Thousand Nine Hundred Five ($3,905.00) Dollars to-wit: $2,640.00 should be paid to the intervener at the rate of $57.50 per month commencing November 1, 1928, with interest at the rate of seven per cent. upon each of said installments as long as the same remains past due and unpaid."
The court then allowed the attorneys for plaintiff and intervener a fee of $1,274.03, to be paid as payments were made to plaintiff and intervener, and concluded its supplemental judgment as follows:
"That the intervener have and recover in addition to the judgment heretofore rendered on the 31st day of October, 1928, in the above entitled cause, the sum of $84.36 and that out of the total amount due the intervener she is entitled to have and recover payment at this time of $1,349.36 with interest at seven per cent. per annum from October 31, 1928 and the balance of said judgment shall be paid in installments at the rate of $57.50 per month, the first payment to be made on the first day of November, 1928 and that said deferred payments shall bear interest at the rate of seven per cent. per annum from the date the same became due subsequent to October 31, 1928, and that the plaintiff and intervener have and recover their costs, for all of which execution is hereby awarded, to all of which findings and rulings and judgment the defendant excepts."
The specifications of error relied upon by appellant are thus stated:
1. The first specification involves the claim that the plaintiff introduced insufficient evidence to show total and permanent disability at the time the insurance contract lapsed, and invokes the rule that an "appellate court will give consideration to the evidence given in a jury trial, and will reverse a judgment based thereon if clearly wrong." This rule is applicable, generally, only to exceptional cases, involving a clear miscarriage of justice. Where there is a conflict of evidence, where the issue is debatable, and there is substantial evidence to support a verdict, an appellate court should rarely, if ever, invade the province of the jury. The question at issue was whether the evidence showed total and permanent disability at the time the insurance contract lapsed for nonpayment of premiums. The War Risk Bureau has defined total disability as follows: "Any impairment of mind or body which renders it impossible for the disabled person to follow continuously and substantially gainful occupation shall be deemed in Articles III and IV to be total disability." And it is to be deemed permanent "when founded on conditions rendering it reasonably certain throughout life of the person suffering from it." Starnes v. United States (D. C.) 13 F.(2d) 212.
The Court of Appeals for the Ninth Circuit holds that the words "total" and "permanent" as applied to disability and as defined by the War Risk Bureau do not necessarily imply incapacity to do any work at all. Speaking of the case before it, that court says:
United States v. Eliasson (C. C. A.) 20 F.(2d) 821, 823.
The following federal cases are to the same effect: United States v. McPhee (C. C. A. 9) 31 F. (2d) 243; United States v. Cox (C. C. A. 5) 24 F.(2d) 944; Wood v. United States (D. C.) 28 F.(2d) 771; Magruder, et al. v. United States (D. C.) 32 F. (2d) 807.
In the instant case the assured, after his discharge, made a praiseworthy effort to do some substantially gainful work. His ability before his injury was limited to manual labor, and for this, after his discharge, he was almost entirely incapacitated. His legs were partially paralyzed and practically useless for any sustained effort. The work which he undertook to do, given to him by an old employer, largely out of indulgent sympathy, did not require walking to any extent. He found it impossible to continue even at this. He was repeatedly sent to hospitals at the instance of the Veterans' Bureau, and finally to the government hospital at Leavenworth, Kan., where he died. Giving every consideration to conflicts of testimony, and to that deemed by counsel for appellant to be of especial evidentiary value, we feel, not only that the verdict is amply sustained, but that the inability of the soldier, from the date of his discharge, to follow continuously any substantially gainful occupation was convincingly established.
2. This specification dwells upon the refusal to admit in evidence the report of the War Veterans' Bureau containing the medical examination by...
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