White v. United States, 6156.

• Decision Date: 12 November 1931
• Docket Number: No. 6156.,6156.
• Parties: WHITE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

53 F.2d 565 (1931)

WHITE et al. v. UNITED STATES.^*

No. 6156.

Circuit Court of Appeals, Fifth Circuit.

November 12, 1931.

C. A. Mays, of Greenwood, S. C., for appellants.

Chas. L. Redding, U. S. Atty., and George Noble Jones, Asst. U. S. Atty., both of Savannah, Ga., Annabel Hinderliter, Bayless L. Guffy, J. T. Brady, and T. J. Williamson, U. S. Veterans' Bureau, all of Washington, D. C., and Harry A. Wallerstein, U. S. Veterans' Administration, of Atlanta, Ga., for the United States.

Before BRYAN, SIBLEY, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

This was an action, instituted in 1930, on a war risk policy or certificate, issued during the World War to Miss Elizabeth White, an army nurse, who died on March 17, 1920. The petition alleged that premiums on said insurance contract were deducted from the insured's army pay until the time of her discharge from the Army on or about April 19, 1919, the payment of no further premiums being alleged, and that the insured was totally and permanently disabled from on and before that date until the time of her death. The only issue of fact raised was as to whether the insured did or did not become totally and permanently disabled while the policy was in force. The evidence bearing on that issue consisted of the testimony of two physicians, two sisters of the insured, and Mrs. Mabel H. Ashley, witnesses introduced by the plaintiffs, and the testimony of Dr. Sydenstricker, a witness introduced by the defendant. Upon the conclusion of the evidence, the court granted a motion for a directed verdict in favor of the defendant.

Evidence without conflict showed the following: Before the insured went into the Army as a nurse, she was not a very robust woman, but she carried on her work as a nurse in Augusta, Ga., where she was for some time before the war. She was a very great favorite with the doctors and very much beloved by her patients, having an extensive nursing practice. The Adjutant General's record of the military service and treatment of the insured covering the period of her service as nurse in the Army showed that she had no disability at the time of her discharge with the exception of defective vision which had not been impaired as a result of her service as an army nurse, and which had not deteriorated during her service as a nurse. From about June 1, 1919, until a few weeks before she went into a hospital a few days before her death, she did private nursing in Augusta when she was able to do so. Her death was caused by lymphatic leukemia, a very rare disease, of which there are two types, acute and chronic. That she had that disease was not known or discovered until after she went to a hospital on March 12, 1920. She stated to Dr. Sydenstricker, the physician who examined and treated her in the hospital, and made a written record of her statements to him, that she had been generally in fairly good health, or she so considered it; that she had had influenza on three successive occasions, September, 1918, April, 1919, and January, 1920. She dated the illness she had when she was examined by Dr. Sydenstricker as beginning three weeks prior to her admission to the hospital, and said she had not felt well since her last attack of influenza in January, and the enlargement of the glands in the body since that attack of influenza in January, and that three weeks before admission to the hospital she had developed a complete loss of appetite, some nausea, and some sensation of illness in her stomach. The evidence as to the insured's condition prior to her last illness covered a period from about March 20, 1919, until she entered the hospital. The following is a summary of facts deposed to by witnesses whose testimony is relied on by the appellants: Mrs. Yeldell, a sister of the insured, stated that just as soon as the insured came out of the Army she visited the witness at the latter's home at Greenwood, S. C., from about the 14th of March, 1919, until March 20, 1919. At that time, the insured was very nervous, very pale, she had no appetite, and was weak. Witness saw the insured again in June, 1919, when she went to a hospital with the witness, but not as a patient. The insured was very nervous at that time. It was at that time that Dr. Goodrich saw and treated the insured. Witness saw the insured again in December, 1919. At that time the insured was very nervous. Mrs. Fulcher, another sister of the insured and the beneficiary named in the policy, stated: The first time witness saw the insured after she came out of the Army was at McBean, Ga., about March 20, 1919. The insured stayed there until about the last of May, 1919, or the first of June. While there she was very pale, very nervous, and very thin. About the end of May or near the first of June, the insured went back to Augusta. From that time until insured died in March, 1920, witness would see her once and sometimes twice during the week. Sometimes insured was on duty, and sometimes she was not. Witness could not see any improvement in insured's condition. Shortly after the insured came back to Augusta, Dr. Bernard treated her for a bowel trouble. He kept no record of his treatment, because the insured was a nurse and friend. The intestinal trouble for which he treated her was followed by a period of some weeks of a little fever, and she was not nourished, and looked white or anemic, and did not look well or feel strong. Witness kept in touch with the insured for perhaps six or eight weeks. About that time, insured had her tonsils taken out. The witness knows of no relationship between intestinal trouble, or tonsil trouble, and leukemia. Dr. Goodrich stated that he recalled treating the insured on several occasions during 1919 and 1920. Being a nurse in Augusta, the witness made no charges and kept no record. At one time she had symptoms suggesting a gall bladder condition. Her general appearance indicated that she was not well. She had a peculiar pallor, and her complexion suggested anemia. Mrs....