Opinion
No. 1594.
September 3, 1938.
Appeal from the District Court of the United States for the District of Colorado; J. Foster Symes, Judge.
Action on a war risk insurance policy by Denver Oyler, as conservator of the estate of Walter Curtis Oyler, a mental incompetent, against the United States of America. Judgment for defendant and the plaintiff appeals.
Reversed and remanded, with directions.
This action is based on a war risk insurance policy issued to Walter Curtis Oyler on February 1, 1918, while he was serving in the Navy. He was honorably discharged June 23, 1924, having paid all premiums up to January 1, 1925. He claims that he became totally and permanently disabled in 1924. He was adjudged a mental incompetent by the County Court of Alamosa County, Colorado, on October 23, 1929, and his brother Denver Oyler was appointed as his conservator. He instituted this action in June, 1936, and prosecutes it in behalf of the insured. At the close of the evidence the trial court instructed a verdict in behalf of appellee, defendant below, and that action to which exceptions were saved is the principal issue here.
Statement of the Facts Bearing on the Point.The insured enlisted for service in the United States Navy in June, 1914, and served for approximately ten years.
The medical records of the Navy Department relative to insured show the following concerning his physical and mental condition as of the dates indicated, viz.:
"April 5, 1924 — Patient worries continually over his family affairs — and his duties aboard ship. Feels his efforts are not appreciated. Breaks down and cries when questioned about his troubles. * * *"
"Diagnosis: Psychoneurosis, Neurasthenia, #1535. Origin: duty, not own misconduct. A Board of Medical Survey met on this date. Nervous and cries when questioned about his trouble. Present condition: Unfit for duty. Probable future duration: Indefinite."
"April 24th, 1924, readmitted with Psychoneurosis, Neurasthenia. Origin: Duty, not own misconduct. Apparently caused from work and worry about work."
"May 26, 1924 — In view of freely talking, flight of ideas, his periods of depression and what seems to be delusions of a persecutory nature, his history of sickness, weakness, headache, he is considered manic depressive."
"May 26, 1924 — Diagnosis changed to `Psychosis, Manic Depressive.' Origin: Duty."
The Board of Medical Survey, May 28th, 1924, states:
"Diagnosis: Psychosis Manic-Depressive. #1525. Origin: Is in the line of duty and is not result of own misconduct. Patient is suffering from Psychosis, which has periods of depression and periods of hilarity with ideas of persecution and weakness. Has suicidal tendencies. This condition incapacitates him from service and requires institutional care. He is apparently in good physical health. Present condition: Unfit for service. Probable future duration: Permanent. Recommendation: That he be transferred to the Napa State Hospital, Imola, California, for further treatment. It is further recommended that he be transferred with suitable attendants to such hospital as is designated by The Veterans Bureau and upon his arrival there that he be discharged from U.S. Naval Service and given into the care of the United States Veterans Bureau."
"June 6, 1924 — Transferred to Napa State Hospital, as recommended by medical survey."
"Napa State Hospital, Imola, California. Readmitted with Psychosis Manic Depressive. Origin: Duty, not due to own misconduct."
"July 2, 1924 — Condition about the same. Very slight improvement."
U.S. Naval Hospital, Mare Island, California. "July 18, 1924 — Readmitted with Psychosis Manic-Depressive. Origin: Duty, not due to own misconduct. Readmitted for further transfer (?) in accordance with approved recommendation of Board of Medical Survey. Condition: Improving."
"July 20, 1924 — Transferred to U.S. Veterans Bureau Hospital, Sheridan, Wyoming."
"July 23, 1924 — Discharged from U.S. Navy to care of Veterans Bureau, in accordance with approved recommendation of Board of Medical Survey."
From the Continuous Service Certificate of plaintiff's ward, (Exhibit E) and under said date of July 23, 1924, appears the following data:
"Professional qualifications at Discharge: Patient in hospital. Place and date of discharge: Hospital, Mare Island, California, July 23, 1924. Character of discharge: Honorable. Rate of Discharge: C.G.M. (which means Chief Gunner's Mate). Cause of Discharge: `Dis' (which means Disability in Service). Recommended for Re-enlistment: No. Rating best qualified to fill: None."
The records of the Veterans Bureau relative to the insured's mental condition as of the dates indicated were also offered in evidence by plaintiff, viz.:
"July 22, 1924, to December 25, 1925, United States Veterans Hospital No. 86, Sheridan, Wyoming. Examination, August 28, 1924. Drs. L.A. Mangan, C.M. Schick, H.W. Barrier. Diagnosis — Psychosis, Manic-Depressive, Manic type (tentative). Prognosis guarded.
"December 6, 1924, to April 18, 1925, United States Veterans Hospital #57, Knoxville, Iowa. Examination January 15, 1925. Drs. John P. Anderson, Peter S. Mallon and D.D. Campbell. Diagnosis, without evidence of mental or nervous disease since admission to this hospital, December 6, 1924.
"April 14, 1925, examination by Dr. John B. Anderson on application of veteran for reinstatement of insurance while at U.S. Veterans Hospital at Knoxville, Iowa. Patient has had psychosis, manic-depressive (improved).
"November 27, 1925, Denver, Colorado. Drs. P.A. Waters, C.B. Partington and H.K. Stinson. No disease found. Prognosis good.
"August 16, 1926, Detroit, Michigan. Dr. E.T. Wilson. Diagnosis, dermatitis, venenati. Prognosis good.
"January 22, 1929, to February 28, 1929, Woodcroft Hospital. Pueblo, Colorado (contract hospital). Diagnosis, Manic-Depressive (depressed).
"March 1, 1929, to August 26, 1929, U.S. Veterans Bureau Hospital, Sheridan, Wyoming. Diagnosis, psychosis, Manic-depressive type pronounced. `Incompetent.'
"June 4, 1930, to July 2, 1930, Fitzsimons General Hospital, Denver, Colorado. Diagnosis: `Incomp.' Psychosis Manic-Depressive. Type, mild."
Other entries from medical record:
"September 10, 1931, Denver, Colorado. Drs. T.L. Eyerly, H.W. Snyder, F.N. Stile C.B. Partington. Diagnosis, Manic-Depressive. Psychosis, depressed phase.
"July 1, 1935, Denver, Colorado. Drs. H.K. Stinson and Louis Hugh. Diagnosis — Manic-Depressive. Psychosis depressed phase. Incompetent."
Dr. Work, a qualified physician and specialist in nervous and mental diseases, testified for plaintiff that he examined Walter Curtis Oyler November 23, 1936, at his office in Denver. He was furnished with copy of the medical record of the United States Navy relating to the patient's mental condition, the same record that had been introduced as evidence; that he has since examined the original record and from his examination of the patient, of the medical record and the entire testimony in the case, and disregarding entirely the portions of the record not admitted in evidence, and basing his opinion only on the portions admitted, he gave it as his opinion that the patient was completely incapable of following a substantially gainful occupation; that he could perform mechanical work for a period of time, but could not for any particular period; that he might briefly, but with no duration; that is the present condition of the patient; that it was his opinion that Oyler was so disabled and equally so on July 23, 1924, and that he has been continuously so disabled; that Oyler has a manic-depressive insanity, which is a mental disease without physical change characterized by peculiar actions and peculiar behavior; that insured gave evidence of a definite belief that he was being persecuted at the hands of different people and organizations; that psychosis is a mental disease. Manic-depressive is one particular disorder of the mind — no disturbance in the substance of the brain — characterized by recurrent periods of excitement and periods of depression between which he may have perfectly normal periods. Sometimes the patient never returns to normal. There will be wild excitement and the patient is out of contact with reality — sometimes depressed even to the point of suicide. Many do commit suicide. It is produced by difficulty in environment. They come on in a general way and last throughout life. Psychosis is essentially incurable. Speaking of this particular patient, his disease will have better and worse periods. Sometimes the better periods are practically normal. They relapse — they have another upset or depression or excitement. This patient has delusions of persecution. He felt he was being hounded about by the community and prevented from getting jobs, especially by instruments of the Government, the Veterans Bureau and the Navy particularly. He has a very good memory. It is compatible with the existence of his present mental disease. He has no enfeeblement of the intellect. His thoughts are of abnormal direction, peculiar and bizarre. He would be able to engage in occupations for a short period of time. Some periods longer than others. This condition is compatible with psychosis, and in general will grow worse. Evidence that patient has worked is not proof that he is not disabled. He is of opinion that patient's disease had progressed.
The insured testified that prior to entering the Navy when he was 21 he was engaged in farm work, railroad yard work and other forms of common labor; that after his discharge he went to the Veterans Hospital at Sheridan, Wyoming, where they treated his knees for a while and blamed him for a lot or things unduly, accused him of pounding his knees to make them hurt, seemed to think he had murderous and crucifying ideas; thinks this charge was made by the clinical director, Richard P. Hentz; was there from July, 1924, to June, 1925. He described the various rooms he had occupied. Part of the time was locked up in a little room, small room with nothing on the floor, no carpets and no bed. They would move the bed in at night. There was a window, also a small hole in the door which he could talk through. He slept there alone at night, couldn't get out of the room. Doesn't know how long he was in different rooms. From there he was transferred to the Veterans Hospital at Knoxville, Iowa. Had discussed leaving Sheridan. Attendants would say, "Why don't you run away?" Witness said, "I came here like a man and I want to leave here like a man." They said they wanted him to stay there two or three years. Finally by getting a letter sent out to friends in St. Louis he was granted a transfer to Knoxville to a psychopathic hospital. Was there from January to March or April, then went to Denver. Went from Denver to Brighton to an uncle's and aunt's. At times he felt able to work, but they did not let him do so. Finally got a job as assistant storekeeper at the sugar factory during the campaign (campaign refers to the two or three months sugar making period). Left there at the end of the campaign. Mr. Hume gave him another position a little higher than the first. Worked for a little while shoveling beets on a farm. Had some trouble at the factory during his second employment. It seemed Mr. Fields didn't want him, "for some reason it seemed as though I couldn't get away with it. I couldn't do the work or didn't get the cooperation or help in it so I could do it." Later obtained work between campaigns with Dodge Brothers at Detroit, Michigan. After second period at the sugar factory worked at the Public Service Company in Denver. Did not know why he was let out, but some friends told him his bond was canceled because of service connected disability. While at Detroit he worked for Dodge Brothers inspecting wheels most of the time. Quit because he was sick. Believed he worked for Gates Rubber Company for a while, just a few days. Worked in what they called the reclaim department. Left there when his brother Denver came and took him back to Alamosa. Tried at different places to get a job in Alamosa. Got some common labor jobs, painting houses and digging basements, then came back to Denver. Went from there to Longmont to his mother's and aunt's. Doesn't remember whether he worked for Mr. Allen at the Imperial Hotel then or after he came from Brighton. Believes he left that job because a man who had formerly worked at the hotel came back and left him out of a job. Then got work at Brighton for Home Service Company, a laundry. Worked there a year and quit because he was sick due to a rupture. Also had flu and wanted to get rupture cured by an operation. Came to Denver and consulted Veterans Bureau, and was sent to Fitzsimons Hospital. Was very sick while there. They wanted to send him to psychopathic ward, but witness told doctor no. Asked them if they wouldn't operate on him and let him go. A few days after that they gave him a discharge and he went to Brighton for a while and then went to Alamosa. Had a doctor operate. Stayed there until he was pretty well over the rupture trouble. Went to Brighton to look for a job. Could find none. Went to Denver where he got a job at Florence Crittendon Home, janitor work. Left there to take a job in a dairy, which lasted about a month. The dairy went broke and kept him there as a watchman. It didn't pay him anything, but he was allowed to sleep in the basement. Finally got a job in Armour's at Denver. Thinks he went to work for Armour and Company last July, 1936. Was advised that the only way he could get a job was to get a statement from Veterans Bureau that he had no disability existing at that time. Asked the Veterans Bureau if they would give him such a statement and they said no, unless he would submit to a period of examination and observation. Told them he would do so. Went back to Sheridan, Wyoming, and they didn't apparently hadn't acted, hadn't done anything with it. Finally they sent him over to Woodcroft Hospital. His brother advised him to go so they would either say he did or didn't have this disability. After the witness had been sent to Woodcroft Hospital about two months the Doctors there asked him to volunteer to go to Sheridan. He said he wouldn't volunteer to go to Sheridan. "I have had enough, if they can't tell me whether I have or have not a disability, they can turn me loose and just let me alone." A few days later a boy whom he had not seen before told him they could take him unless he would volunteer to go. He finally said he would go like a man, but he didn't want to go. He was then brought to Veterans Bureau at Denver. He asked the head man there why he had to go to Sheridan. He was crying. The man said, "Now Oyler, calm down." He mentioned getting compensation back for the witness. The witness replied he didn't want compensation. He wanted yes or no on the question of his disability. The man advised him to go to Sheridan where he would not be compelled to stay more than three months. Went to Sheridan and was forced to submit to a spinal puncture. "I didn't want to, it often affects me. The doctors said I had syphillis, they could see it in my eyes. I told them it was silly and they had different stories — they finally locked me up — I took mistreatment from the attendants there — they pushed me down in the corner and told me to shut up." His brother from Denver finally came and took him away.
Denver Oyler testified that he did not see his brother after his discharge from the Navy until August, 1928, when they met at their mother's home in Longmont, Colorado; that his brother was very nervous. He induced his brother to accompany him to his home at Alamosa, Colorado, where he remained for a few months; that his brother was taken to Woodcroft Hospital at Pueblo, Colorado, an institution for mental diseases, where he remained about one month, and after that he took his brother to the Veterans Hospital at Sheridan, Wyoming, where he remained until October, 1929, when he procured his release and took him back to Alamosa, where he remained until January or February, 1930. During that time his brother secured two little jobs at Alamosa, but was unable to hold them very long. They tried to get him employment with the express company. On account of his disability he was not accepted. Insured then went to Longmont to visit his mother. He was there possibly a year and a half. He worked at the Imperial Hotel as night clerk and janitor. Witness visited him there. He was in constant contact with his mother and aunt. Later insured was employed in a laundry at Brighton, and later was employed by Armour and Company at Denver. Witness visited his brother occasionally at Longmont, and the insured visited the witness at Alamosa. They saw each other several times each year. His brother was very nervous, cried frequently, looked for a firearm or razor around the house, and at one time found a little revolver and went and hid himself in the brush near Alamosa. He had frequent crying spells. While in Longmont insured was under the care of his mother and his aunt. He spent most of his time with his mother while there. Witness had consented to insured's leaving Alamosa on advice of County Judge after insured had threatened to run away. He would seem quite all right at times, then he would get depressed and cry so witness could hardly do anything at all with him. Sometimes these spells would be frequent, sometimes they would go for a month. He kept in touch with the insured's condition by correspondence with his mother and with insured. On being questioned as to insured's condition from 1928 to the present time the witness said insured would frequently cry and want to do away with himself and said he was being persecuted and watched by the Government. Witness could not say exactly how much time insured spent with his mother at Longmont, but he had his mother's word that insured was under constant supervision there. She would see him most every day.
The defendant-appellee offered testimony of the insured's work record, so-called, since his discharge from the Navy. Aside from odd jobs which he did for a few days at a time that record chronologically is this:
November 25, 1925, to January 31, 1926, insured worked for the Great Western Sugar Company at Brighton, Colorado, and received $115 per month.
During the spring or summer of 1926 insured went to Detroit, Michigan. He testified that while he was in Detroit he worked for Dodge Brothers inspecting wheels. Quit because he was sick. There is no evidence of the time of insured's going to or returning from Detroit.
We next find him at work at the Great Western Sugar Company factory at Brighton, being there from November 26, 1926, to January 31, 1927. The only witness who testified gave the date January 31, 1928 but counsel now agree that the correct date was 1927. Appellee's brief so states. Insured's time with that company was about two months on each employment.
After January 31, 1927, there is no other employment of insured until March 29, 1928, 14 months after he left the sugar company. On March 29, 1928, he was employed by the Public Service Company of Colorado, and was with that company until August 20, 1928, four months and 22 days at a salary of 50¢ an hour.
After August 20, 1928, he was next employed sometime during the spring and summer of 1930 by the Imperial Hotel in Longmont, Colorado, as night clerk and janitor at a salary of $12 per week and room. He was sick while there. He wrote his brother he was unable to work. Insured undoubtedly worked at the Imperial Hotel in Longmont, but there is no testimony as to when his services began, when they ceased, or whether they were continuous or interrupted by absences. There is no evidence in the record from which the time that he was there can be approximated.
His next employment was by the Home Laundry at Brighton, Colorado, as fireman. His salary was $15 per week. He quit because he was sick, was ruptured and had the flu. He commenced work there June 30, 1933, and quit June 30, 1934, total one year.
His next employment was by Armour and Company two years after he left the laundry at Brighton. That employment began June 26, 1936, and continued up to the date of the trial, February 1, 1937. He worked five days every week and received from $20 to $36.96 per week.
Aside from odd jobs which probably all told would cover two or three months, it seems within reason to say that his time of employment did not exceed three years in all after his discharge from the Navy. Several of his employers who were asked the question testified that they would not have employed him had they known of his mental incompetency.
James D. Parriott, of Denver, Colo. (Frederick P. Cranston, Kenaz Huffman, and S.A. Sutliff, all of Denver, Colo., on the brief), for appellant.
Thomas E. Walsh, of Washington, D.C. (Thos. J. Morrissey, U.S. Atty., and Joseph N. Lilly, Asst. U.S. Atty., both of Denver, Colo., Julius C. Martin, Director, of Washington, D.C., Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and Keith L. Seegmiller, Atty., of Washington, D.C., on the brief), for the United States.
Before LEWIS, PHILLIPS and BRATTON, Circuit Judges.
These entries appear in the records of the Navy Department relating to the insured:
"April 5, 1924 — Patient worries continually over his family affairs — and his duties aboard ship. Feels his efforts are not appreciated. Breaks down and cries when questioned about his troubles."
"Diagnosis: Psychoneurosis, Neurasthenia. Present condition: Unfit for duty. Probable future duration; Indefinite."
"May 26, 1924 — In view of freely talking, flight of ideas, his periods of depression and what seems to be delusions of a persecutory nature, his history of sickness, weakness, headache, he is considered manic depressive."
"Diagnosis changed to `Psychosis, Manic Depressive.' Origin: Duty."
From the Board of Medical Survey, May 28, 1924: "Diagnosis: Psychosis Manic-Depressive. * * * Patient is suffering from Psychosis, which has periods of persecution and weakness. Has suicidal tendencies. This condition incapacitates him from service and requires institutional care. He is apparently in good health. Present condition: Unfit for service. Probable future duration: Permanent."
"U.S. Naval Hospital, Mare Island, California. July 18, 1924 — Readmitted with Psychosis Manic-Depressive."
From insured's Continuous Service Certificate:
"Rate at discharge: Chief Gunner's Mate. Cause of Discharge: Disability in service. Recommended for Re-enlistment: No. Rating best qualified to fill: None."
The following taken from foregoing statement of facts refers to the condition of insured when in veterans' hospitals:
"July 22, 1924, to December 25, 1925. United States Veterans Hospital, Sheridan, Wyoming, Examination, August 28, 1924. Diagnosis — Psychosis, Manic-depressive, Manic type (tentative). Prognosis guarded."
"December 6, 1924, to April 18, 1925, United States Veterans Hospital, Knoxville, Iowa. Examination April 14, 1925. Patient has had psychosis, manic-depressive (improved)."
"March 1, 1929, to August 26, 1929, U.S. Veterans Bureau Hospital, Sheridan, Wyoming. Diagnosis, psychosis, Manic-depressive type pronounced. Incompetent."
"June 4, 1930, to July 2, 1930, Fitzsimons General Hospital, Denver, Colorado. Diagnosis: Incompetent. Psychosis Manic-Depressive. Type, Mild."
"January 22, 1929, to February 28, 1929, Woodcroft Hospital, Pueblo, Colorado (contract hospital). Diagnosis, Manic-Depressive (depressed)."
"September 10, 1931, Denver, Colorado. (Place of examination or institution not stated. Four doctors.) Diagnosis, Manic-Depressive. Psychosis, depressed phase."
"July 1, 1935, Denver, Colorado. (Place of examination not stated.) Drs. Stinson and Hugh. Diagnosis — Manic-Depressive. Psychosis, depressed phase. Incompetent."
Doctor Work examined insured November 23, 1936. He had copy of the medical record of the United States Navy relating to the insured's mental condition. He heard the testimony in the case, and it was his opinion at his examination and also his opinion on the medical record and on the evidence at the trial that the insured has manic-depressive insanity; that he had been continuously disabled with it on and since July 23, 1924; that he had a belief he was being persecuted at the hands of different people and organizations. Such patients are depressed even to the point of suicide. Many do commit suicide. It comes on in a general way and lasts throughout life. Psychosis is essentially incurable. The insured has delusions of persecution. He will have better and worse periods. He felt he was being hounded about by the community and prevented from getting jobs, especially by instruments of the Government, the Veterans Bureau and the Navy particularly. His condition will grow worse.
Insured's brother being questioned as to insured's condition from 1928 to the time of trial said he had frequent crying spells and wanted to do away with himself, said he was being persecuted and watched by the Government.
While at Sheridan Hospital in 1924 and 1925 insured conceived the notion that he was being accused by someone of pounding his knee to make it hurt and that he had murderous and crucifying ideas.
In October, 1929, on an inquisition of lunacy by the County Court of Alamosa County, Colorado, insured was adjudged to be a mental incompetent. This was competent proof and entitled to some weight on submission of the case to the jury. Wigmore on Evidence (2d Ed.) Vol. 3, Sec. 1671.
These facts extracted from the general statement of facts lead, we think, to the conclusion that there was sufficient evidence in the case as made by the plaintiff to support a verdict in his favor. It can not be doubted on those facts that he was permanently disabled in mind as early as July, 1924, and ever thereafter. The defense contends that because of insured's work record he is not and has not been totally disabled. As to that, the court was misled and fell into serious error of fact. In stating the reasons to the jury for directing them to find a verdict for defendant, it said to the jury in reference to his employment by the Great Western Sugar Company: "The second time he worked there for a whole year, from November, 1926 — for fourteen months to January, 1928, continuously." The error is attributable to the carelessness of the one witness on that subject. His testimony taken literally is in support of the court's statement, but as explained above the witness was in error in stating that the insured's second employment extended to January 31, 1928, whereas counsel now agree and so state in their briefs that that date should have been January 31, 1927. The time employed was two months instead of fourteen. Of course, there is no way of ascertaining whether the court would have directed verdict if it had known the true facts in that respect.
The Supreme Court in the Lumbra v. United States Case, 290 U.S. 551, 558, 54 S.Ct. 272, 275, 78 L.Ed. 492, said: "The phrase `total permanent disability' is to be construed reasonably and having regard to the circumstances of each case."
Of course, there can be no sound reason why the same evidence may not establish both permanent and total disability, especially where it is disability of the mind. That seems to have been the situation in our late case United States v. Pritchard, 10 Cir., 95 F.2d 619, and in United States v. Cox, 5 Cir., 24 F.2d 944. Jagodnigg v. United States, D.C., 295 F. 916. We say it was at least a question for the jury as to whether the insured's type of insanity did or did not abide with him continuously notwithstanding the work record and thus render him totally disabled.
The validity of the appeal is attacked. It was not taken during the trial term, but there was an order of extension during the term giving appellant time within which to file a bill of exceptions. Subsequent like orders were made, each within the time given by the preceding order. Those orders were not brought up by the bill of exceptions, but they were certified as a part of the record proper. We agree with what is said in La Grotta v. United States, 8 Cir., 77 F.2d 673, 103 A.L.R. 527, on that subject.
Reversed and remanded with directions to grant a new trial.