Wise v. United States
| Decision Date | 25 January 1933 |
| Docket Number | No. 6755.,6755. |
| Citation | 63 F.2d 307 |
| Parties | WISE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John N. Snell and Kenneth H. Aynesworth, Jr., both of Houston, Tex., for appellant.
H. M. Holden, U. S. Atty., and Douglas W. McGregor, Asst. U. S. Atty., both of Houston, Tex., and Charles R. Guinn, Chief Atty., Veteran's Administration, of San Antonio, Tex.
Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.
This appeal is from an instructed verdict. Plaintiff, suing on a war risk insurance policy, was unable to make out a case which in the opinion of the trial court entitled him to have a jury verdict on his claim that in 1919, when he paid his last premium, he was totally and permanently disabled within the meaning of his policy. He claims here that the conclusion which the District Judge reached was a conclusion, not of law, but of fact. That the case was taken from the jury to be decided on its facts by the judge. As evidence of this, he points to the memorandum opinion1 filed by the court on the motion for new trial. In this opinion, citing Long v. American Ry. Express Co. (C. C. A.) 30 F.(2d) 571, the District Judge stated in substance that he had instructed the verdict because, convinced that plaintiff did not become totally and permanently disabled while the policy was in force, he could not approve a verdict for him. We do not think the judge meant to say that he instructed the verdict because he disbelieved the testimony of plaintiff, or because of his view of the weight of the evidence. Whatever moved him, however, to instruct is not controlling here, for, if the evidence was such that reasonable minds could draw a conclusion from it in plaintiff's favor, the case must be reversed, while, if it is not, it must be affirmed. The record shows that the District Judge gave most careful consideration to the controlling question in this case, whether there was any evidence to take it to the jury. He declined to instruct at the close of plaintiff's case. It was only after the defendant had closed and renewed its motion that he did so. At that time, while he did state that upon the authority of the Long Case he regarded it as his duty to instruct a verdict for the defendant in cases where he would not permit one to stand if it was found for the plaintiff, he added that, viewing the testimony in the light most favorable to plaintiff, he was convinced that as a matter of law, he had not made out a case. Reid v. Maryland Casualty Co. (C. C. A.) 63 F.(2d) 10.
A careful reading of the record, giving the evidence the most favorable view for plaintiff which it admits of, shows that it proves no more than that plaintiff received an injury before his policy lapsed. This evidence, considered both in the light of the then presently apprehended effect of his injuries and of that thrown upon their then condition by the lapse of time since, wholly fails to show that there existed, while the policy was in force, a total permanent disability. As in Crume's Case (C. C. A.) 54 F.(2d) 556, the evidence shows injuries of a character partially disabling occurring within the life of the policy, the results of which manifested themselves thereafter in a series of successive, but isolated, onsets. It does not show the existence of a disability having the character of totality and the quality of permanence, which, establishing itself completely during the life of the policy, has continued unabated since. Though there is something of an avuncular nature in the provisions which the government made for these policies, in the end they are contracts, and liability under them springs only in accordance...
To continue reading
Request your trial
-
Aetna Life Ins. Co. v. Roberts
...F.2d 565; McLaughlin v. United States, 53 F.2d 450; Eggen v. United States, 58 F.2d 616; United States v. Diehl, 62 F.2d 343; Wise v. United States, 63 F.2d 307; States v. Clapp, 63 F.2d 793; United States v. Cole, 45 F.2d 339. Mere proof that appellee had tuberculosis prior to the lapse of......
-
United States v. Sinor
...question of whether the insured was mentally incapable of making an application for waiver of his insurance premiums. See Wise v. United States, 5 Cir., 63 F.2d 307. The facts as to the mental condition of the insured are somewhat similar to those in the case of Jensen v. United States, D.C......
-
Thatenhorst v. United States, 2173.
...and permanent disability existing during the period of insurance protection. Eggen v. United States, 8 Cir., 58 F.2d 616; Wise v. United States, 5 Cir., 63 F.2d 307. It is not enough to establish that he was partially permanently disabled or temporarily totally disabled while the policy was......
-
Harris v. Gulf Refining Company
...would justify the judgment this Court should sustain it. Helvering v. Gowran, 302 U.S. 238, 58 S.Ct. 154, 82 L.Ed. 224; Wise v. United States, 5 Cir., 63 F.2d 307; Commercial Nat. Bank in Shreveport v. Parsons, 5 Cir., 144 F.2d 231. We will therefore consider these additional Defendants arg......