1. In determining whether there was any evidence to sustain a
verdict for the plaintiff, all facts that the evidence supporting
his claim reasonably tends to prove should be assumed as
established, and all inferences fairly deducible from them should
be drawn in his favor. P.
290 U. S.
553.
2. To a claim under a war risk contract insuring unqualifiedly
against "total permanent disability," the occasion, source or cause
of the petitioner's illness is immaterial. P.
290 U. S.
558.
3. Injuries, exposure and illness suffered by the claimant
before the lapse of his policy, and his condition in subsequent
years, have significance, if any, only to the extent that they tend
to show whether he was in fact totally and permanently disabled
during the life of the policy. P.
290 U. S.
558.
4. The phrase "total permanent disability" in the War Risk
Insurance Act should be construed reasonably and with regard to the
circumstances of each case. P.
290 U. S.
558.
5. It cannot be said that injury or disease sufficient merely to
prevent one from again doing some work of the kind he had been
accustomed to perform constitutes the disability meant by the Act,
for such impairment may not lessen or affect his ability to follow
other useful, and perchance more lucrative, occupations. P.
290 U. S.
559.
6. Separate and distinct periods of temporary total disability,
though likely to recur at intervals throughout life, do not
constitute total permanent disability. Permanent disability means
that which is continuing, as opposed to that which is temporary. P.
290 U. S.
559.
7. The mere fact that one has done some work after the lapse of
his policy does not, in itself, suffice to defeat his claim of
total permanent disability, but the work performed may be such as
conclusively to negative total permanent disability at the earlier
time. Pp.
290 U. S.
560-561.
8. Evidence of the claimant's condition after lapse of his
policy may be considered only for the purpose of determining his
condition while the contract was in force. P.
290 U. S.
560.
Page 290 U. S. 552
9. The claimant's conduct after the alleged accrual of his claim
in this case shows that he did not believe he was totally and
permanently disabled when he let his policy lapse, and his
unexplained delay in bringing suit is strong evidence that he was
not thus disabled at that time. P.
290 U. S.
560.
63 F.2d 796 affirmed.
Certiorari to review a judgment reversing a recovery by verdict
in an action on a war risk insurance policy.
MR. JUSTICE BUTLER delivered the opinion of the Court.
Petitioner was a private in the army of the United States from
July 14, 1917, to April 29, 1919. In September, 1917, he obtained
war risk insurance against death or total permanent disability. May
31, 1919, the policy lapsed for nonpayment of premiums. November
30, 1931, he brought this suit in the federal District Court for
Vermont, alleging that, before May 31, 1919, the policy was matured
by his total permanent disability. Issue having been joined, there
was trial by jury. At the close of all the evidence, respondent
requested the court to direct a verdict in its favor. The court
denied the motion, and, the jury having found for petitioner,
entered judgment in his favor. The Circuit Court of Appeals
reversed. 63 F.2d 796.
Petitioner's claim is that, while the policy was in force, he
became subject to recurring spells of headache, dizziness,
epileptic seizures, and other illness constituting total permanent
disability. The Circuit Court of Appeals held
Page 290 U. S. 553
the evidence not sufficient to show total permanent disability
of petitioner while the insurance was in force. The question
presented is whether there was any evidence upon which a verdict
for petitioner might properly be found. And, for its decision, we
assume as established all the facts that the evidence supporting
petitioner's claims reasonably tends to prove, and that there
should be drawn in his favor all the inferences fairly deducible
from such facts.
Gunning v. Cooley, 281 U. S.
90,
281 U. S.
94.
Before joining the army, petitioner was a laborer and worked
cutting logs, building roads, and as a farm and factory hand. When
enrolled, he was a healthy and strong man of 25 years. He served
overseas in a machine gun company. One of his ankles was injured
June 16, 1918, and two days later he was taken for treatment to a
base hospital, where he remained about a month. It was there
recorded that, while going into a dugout, he had slipped and
severely sprained his ankle, that there was no fracture, and that
his general condition, heart, lungs, and nervous system were
satisfactory. When discharged from the hospital, he joined his
company and remained with it until mustered out at Camp Devens,
Massachusetts, April 29, 1919. The official record shows that, upon
a careful examination at that time by an army surgeon, he was found
mentally and physically sound; that he declared he had no reason to
believe he was impaired in health or was suffering from the effects
of any wound, injury, or disease, and that his company commander
had no reason to believe he then had any wound, injury, or
disease.
In 1920, petitioner several times consulted Dr. Frank B. Hunt,
who certified, December 7, 1920, he found petitioner suffering from
rheumatism, chronic bronchitis, and nervousness. At the trial, Dr.
Hunt testified that petitioner was not, when examined, totally
incapacitated, and did not complain of having had epileptic
seizures of any
Page 290 U. S. 554
kind. It seems that the certificate was intended for use in
support of an application to the United States for compensation.
[
Footnote 1] And, apparently in
connection with such an application, petitioner was examined by Dr.
Byron Herman of the Public Health Service. Under date of December
10, 1920, Dr. Herman reported that, while in the army, petitioner
was never sick, although in the hospital once for a sprained ankle,
that he became ill after getting home, and that he then complained
of rheumatism, throat trouble, and husky voice. The doctor's
diagnosis was chronic rheumatism and chronic laryngitis, his
prognosis was "Good." He reported that petitioner was able to
resume his former occupation, that the degree of vocational
handicap was negligible, and that vocational training was feasible.
January 17, 1921, petitioner verified an application for
compensation stating that he was suffering from bronchial troubles,
rheumatism, and nervousness which commenced about a year earlier
and were caused by gas and exposure in France. And, in March, 1922,
claiming to be partially disabled by reason of ailments of the
lungs and throat, petitioner made application for compensation and
training.
In April, 1924, and in January, 1925 and 1926, petitioner was
examined by Dr. Waldo J. Upton, a specialist in nervous and mental
diseases. He represented that he had no injury or illness during
his military service and was in good physical condition when
discharged, but that, a few months later, he became nervous, weak,
and unable to endure noise. The doctor diagnosed the case as one of
mild neurasthenia characterized by weakness, irritability, and
Page 290 U. S. 555
quick fatigue under stress. He found petitioner able to work at
any occupation involving light labor with reasonable regularity and
without danger. He also examined petitioner in 1928, 1929, and
1930. At the first examination, petitioner reported that, in 1926
and 1927, he had suffered attacks of unconsciousness. The doctor
found petitioner suffering from severe neurasthenia and severe
hysteria. In 1930, he found petitioner had pronounced
psychoneurosis, and that his condition suggested he was developing
grand mal epilepsy. The doctor's testimony indicates that, from
1924, petitioner's condition became progressively worse.
In 1926, Dr. Herman found petitioner was having grand mal
epileptiform seizures. He prescribed medicine and sent petitioner
to a government hospital where he remained a month. In August,
1927, Dr. James O'Neill examined him. Petitioner said he had not
been sick in the army and had sustained no injury except to his
ankle and a slight gassing, but that he had been nervous
practically from the time he left the army. Within the previous
year, he had suffered infrequent fits and had not then worked for
nine weeks. His ailment was diagnosed as severe hysteria, and the
doctor was of opinion he could have worked. In March, 1929, Dr.
Alan Davidson made a diagnosis of epilepsy. Petitioner then said he
had been having uncontrollable nervous attacks which began when he
was in the hospital in France.
Petitioner had no medical treatment between 1920 and 1926. From
that time to 1930, he was sent to the hospital seven times and
received treatment for periods ranging from two to eight weeks. The
government granted petitioner's applications for compensation.
Commencing in 1924 he was rated 10 percent disabled and paid $9 or
$10 a month. Later, increases for disability were found and more
compensation was allowed until, in August, 1930, his disability was
rated at 100 percent and he was given
Page 290 U. S. 556
$94.50 per month in addition to $10.50 allowed for his
child.
From July, 1919, until the beginning of March, 1929, it appears
that petitioner was employed more or less regularly except for
periods aggregating about two years for which he does not account.
Until January, 1921, he worked in a veneer factory. He was
discharged, he testified, because he lost too much time by reason
of weakness and dizzy spells. Then he helped on his sister's farm
for three or four months. The next definite information as to his
employment is that, in July, 1922, he commenced as a machinist's
helper in the shops of the Central Vermont Railway Company. He
worked about two-thirds of full time until May 15, 1923, when he
was laid off on account of force reduction. It does not appear what
he did from then until February 18, 1924. At that time, he was
again employed by the Central Vermont, and worked nearly full time
as a laborer until May, when he quit in order to work in the Boston
& Maine Railroad shops. In the following November, he was
discharged because, as he said, illness caused him to lose too much
time. In December, 1924, he was employed for the third time by the
Central Vermont. He worked about 85 percent of the time until
August 23, 1926. Then he went to the hospital for a month, but he
did not return until November; he worked nearly full time for the
remainder of the year. In 1927, he worked about half time -- that
is, until the end of June, he worked about 85 percent of full time,
he then went to the hospital for an undisclosed period, and, in
October and November, he worked about 70 percent of full time. Then
he was out until the end of January, 1928. Thereafter, until he was
discharged in March, 1929, he worked about 80 percent of full
time.
On each of the three occasions he went to work for the Central
Vermont, he made application for employment in which he represented
himself to be free from bodily
Page 290 U. S. 557
complaints and of a strong constitution. The record contains
testimony that, throughout the period of this employment,
petitioner seemed tired and ill, that he was transferred a number
of times to lighter work, and that, had he not been a veteran, he
would have been discharged.
The substance of petitioner's testimony, insofar as it adds
materially to the facts and evidence above referred to, may be
stated briefly:
June 16, 1918, a shell explosion threw him, injured his ankle,
shocked him severely, and caused him to lose consciousness for a
time and to suffer spells of dizziness, headaches, weakness, and
great perspiration at least once a week during the month he
remained in the hospital. Desiring to leave the hospital, he
refrained from disclosing his illness to attending physicians or
others. After he resumed active service, the spells became worse.
He disclosed his condition to the company commander, and, because
of it, was assigned to work in the kitchen. He did not get better
while in France. After discharge, April 29, 1919, he went to his
mother's home in Vermont and rested for some months. The spells
continued, grew worse, and sometimes would last a day. After
commencing work in July, 1919, he was unsteady and weak, lost much
time, and, on account of his condition, was given lighter work and
finally discharged in January, 1921. Early in 1923, he suffered a
seizure in which he lost consciousness for about 15 minutes. So for
as appears, this was the first seizure in which petitioner fell or
became unconscious. Later he suffered such attacks with increasing
frequency and intensity.
At the trial, medical men gave opinion evidence which, when
considered in connection with the facts and circumstances rightly
to be taken as proved, is sufficient to sustain a finding that
petitioner's illness before and after the lapse of the policy
resulted from injuries and exposure
Page 290 U. S. 558
while in the military service, and that the epileptiform and
epileptic fits, such as that suffered March 1, 1923, and later, are
not curable.
The war risk contract unqualifiedly insures against "total
permanent disability." The occasion, source, or cause of
petitioner's illness is therefore immaterial. [
Footnote 2] His injuries, exposure, and illness
before the lapse of the policy and his condition in subsequent
years have significance, if any, only to the extent that they tend
to show whether he was in fact totally and permanently disabled
during the life of the policy. [
Footnote 3] March 9, 1918, in pursuance of the
authorization contained in the War Risk Insurance Act, [
Footnote 4] the director of the Bureau
ruled (T.D. 20 W.R.):
"Any impairment of mind or body which renders it impossible for
the disabled person to follow continuously any substantially
gainful occupation shall be deemed . . . to be total disability.
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."
The phrase "total permanent disability" is to be construed
reasonably, and having regard to the circumstances of each case. As
the insurance authorized does not extend to total temporary or
partial permanent disability, the
Page 290 U. S. 559
tests appropriate for the determination of either need not be
ascertained. The various meanings inhering in the phrase make
impossible the ascertainment of any fixed rules or formulae
uniformly to govern its construction. That which sometimes results
in total disability may cause slight inconvenience under other
conditions. Some are able to sustain themselves, without serious
loss of productive power, against injury or disease sufficient
totally to disable others. It cannot be said that injury or disease
sufficient merely to prevent one from again doing some work of the
kind he had been accustomed to perform constitutes the disability
meant by the Act, for such impairment may not lessen or affect his
ability to follow other useful, and perchance more lucrative,
occupations. Frequently, serious physical impairment stimulates to
successful effort for the acquisition of productive ability that
theretofore remained undeveloped.
The above-quoted administrative decision is not, and manifestly
was not intended to be, an exact definition of total permanent
disability or the sole guide by which that expression is to be
construed. If read literally, every impairment from time to time
compelling interruption of gainful occupation for any period,
however brief, would be total disability. And, if such impairment
were shown reasonably certain not to become less, it would
constitute total permanent disability. Persons in sound health
occasionally suffer illness requiring them to remain in bed for a
time. It is not inaccurate to describe such illness as "total
disability" while it lasts. But clearly it is not right to say
that, if they remain sound but reasonably certain throughout life
occasionally to have like periods of temporary illness, they are
suffering from "total permanent disability." Such a construction
would be unreasonable and contrary to the intention of Congress.
"Total disability" does not mean helplessness or complete
Page 290 U. S. 560
disability, but it includes more than that which is partial.
"Permanent disability" means that which is continuing, as opposed
to what is temporary. Separate and distinct periods of temporary
disability do not constitute that which is permanent. The mere fact
that one has done some work after the lapse of his policy is not,
of itself, sufficient to defeat his claim of total permanent
disability. He may have worked when really unable, and at the risk
of endangering his health or life. [
Footnote 5] But, manifestly, work performed may be such as
conclusively to negative total permanent disability at the earlier
time. [
Footnote 6]
It requires no discussion to show that the evidence in respect
of petitioner's condition during the life of the policy has no
substantial tendency to prove total permanent disability at the
time of the lapse. The evidence as to his subsequent condition may
be considered only for the purpose of determining his condition
while the contract was in force. His conduct following the alleged
accrual of his claim reflects his own opinion as to whether he was
totally and permanently disabled at the time of the lapse. His own
statements to medical men, their diagnoses, his repeated
applications to the government for compensation, and his failure
earlier to assert any claim, show that for a decade he did not
believe that he was totally and permanently disabled when he let
his policy lapse May 31, 1919. And, in the absence of clear and
satisfactory evidence explaining, excusing, or justifying it,
petitioner's long delay before bringing suit is to be taken
Page 290 U. S. 561
as strong evidence that he was not totally and permanently
disabled before the policy lapsed. [
Footnote 7]
It may be assumed that occasional work for short periods by one
generally disabled by impairment of mind or body does not, as a
matter of law, negative total permanent disability. But that is not
this case. Petitioner, while claiming to be weak and ill and,
contrary to the opinion and diagnoses of examining physicians, that
he was really unable to work, did in fact do much work. For long
periods amounting in the aggregate to more than five years out of
the ten following the lapse of the policy, he worked for
substantial pay. No witness, lay or expert, testified to matters of
fact or expressed opinion tending to support petitioner's claim
that he had suffered "total permanent disability" before his policy
lapsed. Unless by construction these words are given a meaning far
different from that they are ordinarily used and understood to
convey, the evidence must be held not sufficient to support a
verdict for petitioner. The trial court should have directed a
verdict for the United States.
Gunning v. Cooley,
281 U. S. 90,
281 U. S. 93;
Stevens v. The White City, 285 U.
S. 195,
285 U. S. 204.
Affirmed.
[
Footnote 1]
Compensation for death or disability resulting from personal
injuries suffered or disease contracted in the line of duty was
provided by Article 3, Act of October 6, 1917, 40 Stat. 405, as
amended. The grant of insurance was authorized by article 4, Act of
October 6, 1917,
supra, p. 409, as amended.
See Runkle v. United States, 42 F.2d 804, 806.
[
Footnote 2]
United States v. Golden, 34 F.2d 367, 370;
United
States v. Tyrakowski, 50 F.2d 766, 768.
[
Footnote 3]
Carter v. United States, 49 F.2d 221, 224;
Eggen v.
United States, 58 F.2d 616, 619;
Wise v. United
States, 63 F.2d 307, 308;
United States v. Clapp, 63
F.2d 793, 795;
United States v. Linkhart, 64 F.2d 747,
748.
[
Footnote 4]
". . . The director, subject to the general direction of the
Secretary of the Treasury, shall administer, execute, and enforce
the provisions of this Act, and for that purpose have full power
and authority to make rules and regulations, not inconsistent with
the provisions of this Act, necessary or appropriate to carry out
its purposes. . . ."
§ 13, added by § 2, Act of October 6, 1917, 40 Stat. 399.
[
Footnote 5]
United States v. Phillips, 44 F.2d 689, 691;
United
States v. Godfrey, 47 F.2d 126, 127;
Carter v. United
States, 49 F.2d 221, 223;
United States v.Lawson, 50
F.2d 646, 651;
Nicolay v. United States, 51 F.2d 170,
173.
[
Footnote 6]
United States v. Harrison, 49 F.2d 227;
Nicolay v.
United States, 51 F.2d 170, 173, 174;
United States v.
Perry, 55 F.2d 819, 824;
United States v. McGill, 56
F.2d 522, 524;
United States v. Diehl, 62 F.2d 343,
344.
[
Footnote 7]
United States v. Hairston, 55 F.2d 825, 827;
Wise
v. United States, 63 F.2d 307, 308;
United States v.
Linkhart, 64 F.2d 747, 748.
And see Eggen v. United
States, 58 F.2d 616, 618.