Summary
In United States v. Dougherty (C.C.A.) 54 F.2d 721, 723, this court held that the word "continuously" as thus used should not be interpreted in its absolute sense, and that it did not mean "day after day, week after week, month after month, and year after year," but that it should be reasonably and relatively interpreted, having in mind the object which Congress evidently contemplated.
Summary of this case from United States v. CrainOpinion
No. 4558.
December 18, 1931. Rehearing Denied January 11, 1932.
Appeal from the District Court of the United States for the Eastern District of Illinois; Walter C. Lindley, Judge.
Action by Arthur J. Dougherty against the United States. From a judgment in favor of plaintiff, defendant appeals.
Reversed and remanded, with direction.
Appellee instituted this action to recover on a contract of war risk insurance issued to him by appellant while in its military service, under War Risk Insurance Act of 1917, 40 Stat. 398, as amended by Acts of 1918, 40 Stat. 555 and 40 Stat. 609, as revised and re-enacted by World War Veterans' Act of 1924, 43 Stat. 607 (38 USCA § 421 et seq.).
It was stipulated that appellee entered the military service of the United States on March 10, 1918, and was honorably discharged on July 8, 1919; that the premiums on said contract of insurance were paid to and including the month of July, 1919; and that no premiums were paid thereafter.
The District Court, after hearing the evidence without a jury, found the facts, specially, to the effect that appellee, while his war risk insurance certificate was in full force and effect, became totally and permanently disabled within the meaning and purview of the act, having suffered such an impairment of body as to render him unable to follow thereafter continuously a substantially gainful occupation; that he was so disabled at the time of his discharge on July 8, 1919, and has so remained ever since; and that it is reasonably certain that he will continue to be so disabled throughout the remainder of his life. Judgment was rendered for appellee on those facts, and from that judgment this appeal is prosecuted.
Harold G. Baker, U.S. Atty., of East St. Louis, Ill., John W. Speakman, Asst. U.S. Atty., of Danville, Ill., and William Wolff Smith, Sp. Counsel, Veterans' Administration, and Bayless L. Guffy, all of Washington, D.C., and Bryan Purteet, of St. Louis, Mo., for appellant.
Samuel V. Jinkins, of Danville, Ill., for appellee.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
Under section 400 of the War Risk Insurance Act, 40 Stat. 409, and section 402 as amended by § 21, 40 Stat. 615, the insurance shall be payable only at death or during any total and permanent disability to the injured person which existed at or before the expiration of an insurance contract.
Under section 13 of the act, 40 Stat. 398, 399, the director, subject to the general direction of the Secretary of the Treasury, shall adopt reasonable and proper rules to govern the procedure of the divisions and to regulate and provide for the nature and extent of the proofs and evidence. By virtue of this section the director, on March 9, 1918, defined total disability, as contemplated in articles III and IV of the act, to be any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation. He further declared in that order that total disability shall be deemed to be permanent whenever it is founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering from it. Regulation 11.
The only controverted issue presented to the trial court was whether or not appellee, at or before the expiration of the insurance contract, was totally and permanently disabled within the meaning of the statute and the director's regulations thereunder.
We are first met, however, with the contention of appellant that the court erred in admitting, over the objections of the government, Appellee's Exhibits 5, 6, 7, 8, and 9. These were letters bearing somewhat on the physical condition of the insured, and were written by various officers and representatives of the United States Veterans' Bureau, but they related to disability compensation and not insurance as contemplated by the certificate in the instant action. It is contended by appellant in this respect that such disability compensation is based on other and different statutes, which provide that for the purposes of certain sections therein contained any ex-service man who is shown to have — or, if deceased, to have had — an active tuberculosis disease prior to January 1, 1925, developing a 10 per centum degree of disability or more, shall be presumed to have acquired his disability in such service between April 6, 1917, and July 2, 1921. Act of 1924, § 200, 43 Stat. 615, as amended by Act of 1925, § 6, 43 Stat. 1304, as amended by Act of 1926, § 7, 44 Stat. 793, and as amended by Act of 1930, c. 849 (Public No. 522), § 11, 46 Stat. 995 (38 USCA § 471). Inasmuch as the provision just referred to — with relation to the presumption of the time of acquiring the disease — is not contained in the acts which relate to insurance, it is appellant's contention that the exhibits above referred to can have no relation to the instant case and were improperly admitted. In support of its contention it cites United States v. Searls (C.C.A.) 49 F.2d 224, and Runkle v. United States (C.C.A.) 42 F.2d 804, 806, neither of which cases, as we read them, supports appellant's contentions.
In the Searls Case, supra, the trial court's ruling on evidence was not before the court, nor was it referred to. The cause was reversed and remanded for a new trial because the trial court instructed the jury that the presumption contained in the enactment relating to compensation for disability applied to insurance, and it therefore instructed peremptorily for the insured.
In the Runkle Case, supra, the cause was reversed and remanded because the trial court excluded the opinion of a physician, based on the history of the case, to the effect that insured was unable to carry on gainful occupation from November, 1918, until his death; but the trial court was sustained in excluding a physician's report found in the Veterans' Bureau files because it was not properly identified. In this connection the court said, by way of instruction to the trial court at the next trial: "If the report is properly identified as having been made by a doctor employed by the United States government, and that it is his report of a physical examination made of the insured, it is not incompetent." Citing World War Veterans' Act 1924, 38 USCA § 456.
In so far as Exhibits 5, 6, 7, 8, and 9 relate to insured's physical condition, they were properly admitted. There is nothing in the record to indicate that the trial court indulged in the presumption referred to in the act relating to disability compensation.
It is next contended by appellant that the trial court placed an erroneous construction upon the word "continuously" as used by the director in Regulation No. 11. In determining this question it is not necessary to set forth the evidentiary facts relative to insured's physical condition on or about the time of his discharge, or at the expiration of the policy. It is sufficient to say that the only direct evidence on that subject was given by appellee himself, and his evidence as a whole is quite contradictory. About the only supporting testimony in that respect is that of some members of his family and of Dr. Jewell. While the doctor did not examine insured until October 4 and 5, 1930, he gave it as his opinion that insured was unable to follow continuously a substantially gainful occupation from July 8, 1919, to October 1, 1919. He thought insured was so disabled on July 8, 1919, but he said his opinion was not based on his examination.
At the conclusion of all the evidence the trial court remarked that the question was a close one. During the examination of Dr. Montfort, a witness called by the court, the court remarked: "Of course, the question would be material, whether a man may do that continuously day after day, week after week and month after month and year after year. That is the question I am to decide. That is what the Supreme Court has said constitutes total and permanent disability. It must be total and it must be permanent, and that means it must be following continuously a gainful occupation."
We are inclined to the belief that the language quoted means that any disability which prevents one from following a substantially gainful occupation day after day, week after week, month after month, and year after year, constitutes a total disability. With this construction we are unable to agree. We think the word "continuously" should not be given such an absolute meaning, but should be reasonably and relatively interpreted, having in mind the object which Congress evidently contemplated. We are unable to find any authority which has given such a broad construction to this regulation.
On account of the conflicting testimony and the uncertainty of the facts which are necessary to be established to warrant a recovery, we cannot say that this view of the law as expressed by the court did not lead to an unwarranted and erroneous conclusion.
The judgment is reversed, and the cause remanded, with direction to award a new trial.