1. In an action on a lapsed war risk insurance policy insuring
only against "total permanent disability," the evidence established
that, since a time prior to the lapse, the insured, as the result
of chronic and incurable disorders, was partially disabled, and at
times and during periods of substantial duration, totally disabled,
but that, in the year next following the lapse, he was officially
examined and found fit for service as an air pilot, and that,
during the larger part of more than eight years between the lapse
and the commencement of his suit, he was able to work, and actually
did so, and earned substantial compensation.
Held:
(1) That, in view of these facts, his testimony that, under
stress of need, he worked when not able cannot be given weight, for
he is not entitled to recover unless he became totally disabled
before the lapse and thereafter remained in that condition. P.
293 U. S.
505.
(2) Since he was not totally disabled when found fit for air
service and while performing work admittedly done, total disability
occurring while the policy was in force was temporary, and not
permanent. P.
293 U. S.
506.
(3) The fact that, notwithstanding his need of money for the
support of his family and himself, he failed for nearly nine years
to sue for the insurance money now claimed strongly suggests that
he had not suffered total permanent disability covered by the
policy.
Lumbra v. United States, 290 U.
S. 551,
290 U. S. 560.
And that suggestion is emphasized by the fact that he procured
examination for reinstatement of his insurance.
Id.
(4) The opinions of medical witnesses that work impaired his
health and tended to shorten his life had no substantial
bearing
Page 293 U. S. 499
upon the question whether total disability while the policy was
in force continued during the subsequent years. As against the
facts directly and conclusively established, this opinion evidence
furnishes no basis for opposing inferences. P.
293 U. S.
506.
(5) Medical opinions that he became totally and permanently
disabled before his policy lapsed are without weight, it being
clear that the experts failed to give proper consideration to his
fitness for naval air service or to the work he performed, and
misinterpreted "total permanent disability" as used in the policy
and statute authorizing the insurance.
Id.
(6) The Government's motion for a directed verdict on the
evidence should have been granted. P.
293 U. S.
505.
2. An expert ought not be allowed to express an opinion upon the
ultimate issue of fact to be decided by the jury. P.
293 U. S.
506.
68 F.2d 656 reversed.
Certiorari to review the affirmance of a judgment against the
United States in an action on a war risk insurance policy.
MR. JUSTICE BUTLER delivered the opinion of the Court.
In September, 1917, respondent, then 24 years old, enlisted in
the United States Navy. He was successively commissioned ensign and
lieutenant, and became an air pilot. He was honorably discharged
June 30, 1922. While in the service, he obtained a policy of war
risk insurance which lapsed November 30, 1923. He brought this suit
March 15, 1932, in the federal District Court for Northern Florida
to recover the amounts payable under
Page 293 U. S. 500
the policy for total permanent disability alleged to have
resulted from kidney disease and injuries received in an airplane
crash occurring while the policy was in force. At the close of all
the evidence, the United States moved for a directed verdict. The
motion was denied, the jury found for respondent, and the court
gave him judgment which was affirmed by the Circuit Court of
Appeals. 68 F.2d 656.
The policy covers total permanent disability, whatever its
cause, occurring before the lapse. The evidence was not confined to
that period, for respondent's subsequent condition is pertinent to
the extent that it tends to show whether he became totally and
permanently disabled before the lapse.
Lumbra v. United
States, 290 U. S. 551,
290 U. S. 560.
The United States maintains that the evidence was not sufficient to
sustain the verdict. And that is the sole question presented for
our consideration.
The material substance of the evidence follows.
In the latter part of 1919, respondent first had kidney trouble.
According to the naval medical records, he was sick four times from
what was finally diagnosed as a kidney stone. These illnesses were
in June and September, 1920, and in January and August, 1921; their
duration in all was about six weeks; while they lasted, urinalyses
sometimes disclosed albumin, casts, and corpuscles in varying
quantities. Some time after the last attack, the stone was removed.
November 14, 1921, respondent's upper and lower jaws were fractured
in the airplane crash. He was in the naval hospital until February,
1922. He testified that he continuously had kidney trouble and
severe pains in the head and back. When discharged, the only defect
noted was that his teeth did not occlude properly. Due to that, he
had gastritis February 28. Urinalysis then disclosed very few blood
cells, occasional pus cells, but no albumin or casts. The gastritis
disappeared. In May following, his teeth were treated for the
malocclusion.
Page 293 U. S. 501
Respondent testified that he was then suffering kidney pains,
and that his left antrum was much swollen. A civilian, Dr. Quina,
treated the antrum.
May 31, respondent went again to the hospital. He then stated
that, two years earlier, he had suffered acute illness following
exposure in wet and cold, had not felt well since, and for the last
month had been treated for kidney trouble. The diagnosis then made
was "nephritis chronic parenchymatous." June 26, 1922, he was
examined for discharge from the service. The medical officers noted
their opinion that the nephritis was due to toxic materials
absorbed from the antrum, and that infection of the antrum resulted
from injuries sustained in the airplane crash. He was found
"not physically qualified for active duty in the Navy by reason
of the following physical defects which are of a more or less
temporary nature: infection of left antrum and malocclusion of the
teeth."
And, on that day, he certified that he had the following
disabilities entitling him to compensation under the War Risk
Insurance Act: infection of the left antrum, malocclusion of the
teeth, stomach trouble, and heart murmur. He made no claim that he
had become totally and permanently disabled or that he was entitled
to the amounts that, under the policy, are payable therefor.
Respondent did nothing from the time he was discharged until
February, 1923. He testified that, during that period, he was ill
and under the care of doctors who forbade work. When he finally did
work, it was against their orders, and to support his family. From
February, 1923, until April, 1924, he took vocational training.
During that time, his policy lapsed. He quit before completion of
the course because, as he says, he was no better, and thought
outdoor work would be good for him. Then for more than a year he
was employed as an automobile salesman. Much riding over rough
roads aggravated his condition and prevented continuous work. He
was paid
Page 293 U. S. 502
a salary of $125 per month for a part of the time, and
commissions for the remainder.
Commencing about September 1, 1925, respondent for seven months
was employed as superintendent of construction of roads and ditches
at a salary of $300 per month. He next worked for an electric
company during four years and two months until September, 1930. For
the first five or six months, he was a salesman, and earned
commissions amounting to about $500. He then became superintendent
of electrical work at a salary of $200 per month. Except for six or
seven weeks in another year and three months in 1930, he received
salary for every month, though not able to work full time. He was
discharged because he could not put in full time. Two fellow
employees testified that he was ill and at home three or four days
a month. That was his last employment.
An official record put in evidence by him shows that, in July,
1924, he was given a special physical examination to test his
qualifications for flying. It indicates recovery from the airplane
crash, heart and blood pressure normal, no recurrence of kidney
trouble. As a result of the examination, he was officially
certified to have no defects and to be qualified for flying duty as
a pilot.
Commencing in 1923, while the policy was still in force
respondent was treated by Dr. Quina, to whom he went daily during
the first year and three or four times weekly during the next two.
His condition did not improve, and, because of inability to pay the
doctor, he discontinued. For a few years prior to the trial, he has
been going to doctors for sinus treatment as often as every other
day. October 31, 1928, the Veterans' Bureau examined him,
apparently in connection with his application to reinstate his
insurance. He was classified as a poor risk: "This man has a
chronic nephritis. Hypertension. Urine shows occasional hyaline
casts and a few red blood cells." In March, 1930, he entered a
veterans' hospital at Washington,
Page 293 U. S. 503
where he remained about six weeks. The diagnoses were
albuminaria, nephritis diffuse mild, moderate hypertension. It was
found that no hospitalization was necessary. Dr. Fowler, a
consultant in urology, found the right kidney out of position and
suggested surgery. June 1, 1931, respondent went to a naval
hospital for treatment of the infected antrum, and remained there
until July 7. It was found that his blood pressure and heart were
normal. He had moderate hydronephrosis of the right kidney and a
kink in the upper half of the right ureter. Urinalysis was
negative.
Respondent called Dr. Quina, Dr. Bryan, and Dr. Pierpont.
Dr. Quina had treated respondent for the antrum infection for
several years after the latter's discharge from the Navy. He
testified that the antrum infection was incurable, and that, during
the period of treatment, respondent had nephritis caused by the
infection; that it did not improve; that respondent had impaired
his health by working, and that,
"in my opinion at the time I first examined him and since that
time, he has not been capable of continuously carrying on a
substantially gainful occupation without injury to his health."
The doctor thought that, under proper treatment, respondent
could live a long time. "I would put him in bed and keep him there.
If he engages in any work, it will make him die a little bit
sooner." Although the witness did not testify to any change in
respondent's condition, he said:
"If a man had mild nephritis in 1923 and in 1932 has diagnosis
of mild nephritis . . . , his condition is much worse now than it
was then because he still has a breaking down of the kidneys."
Dr. Bryan commenced to treat respondent in July, 1929, and at
that time found chronic nephritis. He expressed the opinion that
the disease existed in 1923. An examination a year before the trial
indicated respondent had not improved. Absolute rest was the
treatment for his condition,
Page 293 U. S. 504
any work physical or mental would impair his health, and
"if he continuously engages in any kind of work, he is going to
limit his days on this earth. . . . If a man has mild nephritis in
1923 and actually works for seven years and quits work in 1930, and
then, in 1932, still has a diagnosis of only mild nephritis, I
would say that he had injured himself, for a man with that type of
disease would injury his health by doing any kind of work. By
working, he has made it worse; he might have recovered. I would . .
. say he was totally and permanently disabled. I don't know about
his disability from an occupational standpoint."
Dr. Pierpont never treated respondent, but examined him three
times shortly before the trial. He found chronic nephritis, a bad
heart, and high blood pressure. On the history of the case, he
expressed opinion that respondent's ailments dated back to 1922 or
1923. He said:
"I would prescribe absolute rest. . . . If plaintiff engaged in
work, it . . . would impair his health. From my examination, I
would say that the plaintiff is not able to continuously engage in
any substantially gainful occupation without impairment to his
health. . . . If I had a patient who had an inception or beginning
of that disease in 1923 and . . . had actually worked for a period
of seven years continuously and then quit work for two years and
then, in 1932, still had virtually the same condition he had in the
beginning, I would say that the disease is progressive, that the
work would make his condition worse."
The terms of the contract of insurance are in accordance with ยง
400, Art. IV, Act of October 6, 1917, 40 Stat. 409, and extend only
to death and total permanent disability occurring while it is in
force, whether during or after termination of the service of the
insured. The policy does not cover total temporary disability or
partial permanent disability, and does not authorize or permit any
payment for physical or mental impairment that is less than
"total
Page 293 U. S. 505
permanent disability." Periods of total temporary disability,
though likely to recur at intervals, do not constitute the
disability covered by the policy, for "permanent" means that which
is continuing, as contrasted with that which is "temporary." The
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. It may not be assumed that
occasional work for short periods by one generally disabled because
of impairment of mind or body does, as a matter of law, negative
total permanent disability. But it is plain that work done may be
such as conclusively to negative total permanent disability at an
earlier time.
Lumbra v. United States, supra, 290 U. S. 558
et seq.
After considerate examination of the record, we are of opinion
that the evidence and all inferences that justifiably may be drawn
from it do not constitute sufficient basis for a verdict for
respondent, and that therefore the trial judge should have directed
the jury to find 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.
203-204.
It is shown that, since a time prior to the lapse of the policy,
respondent had incurable infection of an antrum, malocclusion of
teeth, and chronic nephritis that caused illness and impaired his
physical and mental powers to such an extent that generally he was
partially disabled and at times, and during periods of substantial
duration, totally disabled. In 1924, he was found fit for service
as an air pilot. During the larger part of more than eight years
between the lapse of his policy and the commencement of this suit,
he was able to and actually did work and earn substantial
compensation. In view of these facts, his testimony that, under
stress of need, he worked when not able cannot be given weight, for
he is not entitled to recover on the policy unless he became
totally disabled
Page 293 U. S. 506
before its lapse and thereafter remained in that condition. If
not totally disabled when found fit for air service and while
performing work admittedly done, total disability occurring while
the policy was in force was temporary, and not permanent. The fact
that, notwithstanding his need of money for the support of his
family and himself, he failed for nearly nine years to sue for the
insurance money now claimed strongly suggests that he had not
suffered total permanent disability covered by the policy.
Lumbra v. United States, supra, 290 U. S. 560.
And that suggestion is emphasized by the fact that, in 1928, he
procured examination for reinstatement of his insurance. The
opinions of respondent's medical witnesses that work impaired his
health and tended to shorten his life had no substantial bearing
upon the question whether total disability while the policy was in
force continued during the subsequent years. As against the facts
directly and conclusively established, this opinion evidence
furnishes no basis for opposing inferences.
The medical opinions that respondent became totally and
permanently disabled before his policy lapsed are without weight.
Clearly the experts failed to give proper weight to his fitness for
naval air service or to the work he performed, and misinterpreted
"total permanent disability" as used in the policy and statute
authorizing the insurance. Moreover, that question is not to be
resolved by opinion evidence. It was the ultimate issue to be
decided by the jury upon all the evidence in obedience to the
judge's instructions as to the meaning of the crucial phrase and
other questions of law. The experts ought not to have been asked or
allowed to state their conclusions on the whole case.
Milwaukee
& St.P. Ry. Co. v. Kellogg, 94 U. S.
469,
94 U. S. 472;
Schmieder v. Barney, 113 U. S. 645,
113 U. S. 648;
Fireman's Ins. Co. v. J. H. Mohlman Co., 91 F. 85, 88;
Mullins Lumber Co. v. Williamson &
Page 293 U. S. 507
Brown Land & Lumber Co., 255 F. 645, 646;
Germantown Trust Co. v. Lederer, 263 F. 672, 676.
There is nothing in the record that at all impairs the
significance of the finding that, in 1924, respondent was fit for
service as an air pilot, or of the work he performed after the
lapse of the policy. These facts conclusively establish that he did
not become totally and permanently disabled before his policy
lapsed.
Lumbra v. United States, supra; Falbo v. United
States, 291 U.S. 646.
*
*
Cf. United States v. Pollock, 68 F.2d 633, 634;
United States v. Timmons, 68 F.2d 654, 655;
Tracy v.
United States, 68 F.2d 834, 837;
United States v.
Burns, 69 F.2d 636, 638;
United States v. Sumner, 69
F.2d 770, 772;
United States v. Green, 69 F.2d 921;
United States v. Legg, 70 F.2d 106;
United States v.
Derrick, 70 F.2d 162;
Huffman v. United States, 70
F.2d 266;
United States v. Johnson, 70 F.2d 399;
United States v. Lancaster, 70 F.2d 515;
Atkins v.
United States, 63 App.D.C. 164, 70 F.2d 768;
Harris v.
United States, 70 F.2d 889, 891.