1. In this suit against the United States to recover benefits
under a contract of war risk insurance, on account of alleged total
and permanent disability resulting from insanity of the insured
while the policy was in force,
held that the evidence was
insufficient to support a judgment for the plaintiff, and the trial
court properly granted the Government's motion for a directed
verdict. P.
319 U. S.
386.
2. The Seventh Amendment has no application of its own force to
this suit against the United States. P.
319 U. S.
388.
3. Upon the record in this case, the direction of the verdict
for the defendant did not deprive the plaintiff of the right to a
jury trial. P.
319 U. S.
396.
130 F.2d 467 affirmed.
Certiorari, 317 U.S. 622, to review the affirmance of a judgment
upon a verdict directed for the Government in a suit to recover
benefits under a contract of war risk insurance.
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
Petitioner seeks benefits for total and permanent disability by
reason of insanity he claims existed May 31, 1919. On that day, his
policy of yearly renewable term insurance lapsed for nonpayment of
premium. [
Footnote 1]
Page 319 U. S. 373
The suit was filed June 15, 1938. At the close of all the
evidence, the District Court granted the Government's motion for a
directed verdict. Judgment was entered accordingly. The Circuit
Court of Appeals affirmed. 130 F.2d 467. Both courts held the
evidence legally insufficient to sustain a verdict for petitioner.
He says this was erroneous and, in effect, deprived him of trial by
jury, contrary to the Seventh Amendment.
The constitutional argument, as petitioner has made it, does not
challenge generally the power of federal courts to withhold or
withdraw from the jury cases in which the claimant puts forward
insufficient evidence to support a verdict. [
Footnote 2] The contention is merely that his case
as made was substantial, the courts' decisions to the contrary were
wrong, and therefore their effect has been to deprive him of a jury
trial. Petitioner relies particularly upon
Halliday v. United
States, 315 U. S. 94, and
Berry v. United States, 312 U. S. 450,
citing also
Gunning v. Cooley, 281 U. S.
90. These cases and others relied upon are
distinguishable upon the facts, as will appear. Upon the record and
the issues as the parties have made them, the only question is
whether the evidence was sufficient to sustain a verdict for
petitioner. On that basis, we think the judgments must be
affirmed.
I
Certain facts are undisputed. Petitioner worked as a
longshoreman in Philadelphia and elsewhere prior to enlistment
Page 319 U. S. 374
in the Army November 1, 1917. [
Footnote 3] He became a cook in a machine gun battalion.
His unit arrived in France in April, 1918. He served actively until
September 24. From then to the following January, he was in a
hospital with influenza. He then returned to active duty. He came
back to the United States, and received honorable discharge April
29, 1919. He enlisted in the Navy January 15, 1920, and was
discharged for bad conduct in July. The following December, he
again enlisted in the Army, and served until May, 1922, when he
deserted. Thereafter, he was carried on the Army records as a
deserter.
In 1930 began a series of medical examinations by Veterans'
Bureau physicians. On May 19 that year, his condition was diagnosed
as "Moron, low grade; observation, dementia praecox, simple type."
In November, 1931, further examination gave the diagnosis,
"Psychosis with other diseases or conditions (organic disease of
the central nervous system -- type undetermined)." In July, 1934,
still another examination was made, with diagnosis:
"Psychosis manic and depressive insanity incompetent;
hypertension, moderate; otitis media, chronic, left; varicose veins
left, mild; abscessed teeth roots; myocarditis, mild."
Petitioner's wife, the nominal party in this suit, was appointed
guardian of his person and estate in February, 1932. Claim for
insurance benefits was made in June, 1934, and was finally denied
by the Board of Veterans' Appeals in January, 1936. This suit
followed two and a half years later.
Petitioner concededly is now totally and permanently disabled by
reason of insanity, and has been for some time prior to institution
of this suit. It is conceded also that
Page 319 U. S. 375
he was sound in mind and body until he arrived in France in
April, 1918.
The theory of his case is that the strain of active service
abroad brought on an immediate change, which was the beginning of a
mental breakdown that has grown worse continuously through all the
later years. Essential in this is the view it had become a total
and permanent disability not later than May 31, 1919.
The evidence to support this theory falls naturally into three
periods, namely, that, prior to 1923; the interval from then to
1930, and that following 1930. It consists in proof of incidents
occurring in France to show the beginnings of change; testimony of
changed appearance and behavior in the years immediately following
petitioner's return to the United States as compared with those
prior to his departure; the medical evidence of insanity
accumulated in the years following 1930, and finally the evidence
of a physician, given largely as medical opinion, which seeks to
tie all the other evidence together as foundation for the
conclusion, expressed as of 1941, that petitioner's disability was
total and permanent as of a time not later than May of 1919.
Documentary exhibits included military, naval, and Veterans'
Bureau records. Testimony was given by deposition or at the trial
chiefly by five witnesses. One, O'Neill, was a fellow worker and
friend from boyhood; two, Wells and Tanikawa, served with
petitioner overseas; Lt. Col. Albert K. Mathews, who was an Army
chaplain, observed him or another person of the same name at an
Army hospital in California during early 1920, and Dr. Wilder, a
physician, examined him shortly before the trial and supplied the
only expert testimony in his behalf. The petitioner also put into
evidence the depositions of Commander Platt and Lt. Col. James E.
Matthews, his superior officers in the Navy and the Army,
respectively, during 1920-22.
Page 319 U. S. 376
What happened in France during 1918-19 is shown chiefly by Wells
and Tanikawa. Wells testified to an incident at Aisonville, where
the unit was billeted shortly after reaching France and before
going into action. Late at night, petitioner created a disturbance,
"hollering, screeching, swearing. . . . The men poured out from the
whole section." Wells did not see the incident, but heard
petitioner swearing at his superior officers and saw "the result, a
black eye for Lt. Warner." However, he did not see "who gave it to
him." [
Footnote 4] Wells
personally observed no infraction of discipline except this
incident, and did not know what brought it on. Petitioner's
physical appearance was good, he "carried on his duties as a cook
all right," and the witness did not see him after June 1, except
for about three days in July when he observed petitioner several
times at work feeding stragglers.
Tanikawa, Hawaiian-born citizen, served with petitioner from the
latter's enlistment until September, 1918, when Galloway was
hospitalized, although the witness thought they had fought together
and petitioner was "acting queer" at the Battle of the Argonne in
October. At Camp Greene, North Carolina, petitioner was "just a
regular soldier, very normal, . . . pretty neat." After reaching
France, "he was getting nervous, . . . kind of irritable, always
picking a fight with other soldier." This began at Aisonville.
Tanikawa saw Galloway in jail, apparently before June. It is not
clear whether these are references to the incident Wells
described.
Tanikawa described another incident in June "when we were on the
Marne," the Germans "were on the other side, and we were on this
side." It was a new front, without trenches. The witness and
petitioner were on guard duty with others. Tanikawa understood the
Germans
Page 319 U. S. 377
were getting ready for a big drive. "One night he [petitioner]
screamed. He said,
The Germans are coming,' and we all gagged
him." There was no shooting, the Germans were not coming, and there
was nothing to lead the witness to believe they were. Petitioner
was court-martialed for the matter, but Tanikawa did not know "what
they did with him." He did not talk with Galloway that night,
because "he was out of his mind" and appeared insane. Tanikawa did
not know when petitioner left the battalion or what happened to him
after (as the witness put it) the Argonne fight, but heard he went
to the hospital, "just dressing station I guess." The witness next
saw Galloway in 1936 at a disabled veterans' post meeting in
Sacramento, California. Petitioner then "looked to me like he
wasn't all there. Insane. About the same . . . as compared to the
way he acted in France, particularly when they gagged him. . .
."
O'Neill was "born and raised with" petitioner, worked with him
as a longshoreman, and knew him "from when he come out of the army
for seven years, . . . I would say five or six years." When
petitioner returned in April or May, 1919, "he was a wreck compared
to what he was when he went away. The fellow's mind was evidently
unbalanced." Symptoms specified were withdrawing to himself; crying
spells; alternate periods of normal behavior and nonsensical talk;
expression of fears that good friends wanted "to beat him up;"
spitting blood and remarking about it in vulgar terms. Once
petitioner said, "G-d-it, I must be a Doctor Jekyll and Mr.
Hyde."
O'Neill testified these symptoms and this condition continued
practically the same for about five years. In his opinion,
petitioner was "competent at times and others was incompetent." The
intervals might be "a couple of days, a couple of months." In his
normal periods, Galloway "would be his old self . . . absolutely
O.K."
Page 319 U. S. 378
O'Neill was definite in recalling petitioner's condition and
having seen him frequently in 1919, chiefly however, and briefly,
on the street during lunch hour. He was not sure Galloway was
working, and was "surprised he got in the Navy, I think in the Navy
or in the Government service."
O'Neill maintained he saw petitioner "right on from that [1920]
at times." But his recollection of dates, number of opportunities
for observation, and concrete events was wholly indefinite. He
would fix no estimate for the number of times he had seen
petitioner: "In 1920, I couldn't recall whether it was one or a
thousand." For later years, he would not say whether it was "five
times or more or less." When he was pinned down by
cross-examination, the effect of his testimony was that he recalled
petitioner clearly in 1919 "because there was such a vast contrast
in the man," but, for later years, he could give little or no
definite information. The excerpt from the testimony set forth in
the margin [
Footnote 5] shows
this contrast.
Page 319 U. S. 379
We also summarize below [
Footnote 6] other evidence which explains or illustrates
the vagueness of the witness' recollection for events after 1919.
O'Neill recalled one specific occasion after 1919 when petitioner
returned to Philadelphia, "around 1920 or 1921, but I couldn't be
sure," to testify in a criminal proceeding. He also said,
"After he was away for five or six years, he came back to
Philadelphia, but I wouldn't know nothing about dates on that. He
was back in Philadelphia for five or six months or so, and he was
still just evidently all right, and then he would be off."
Lt. Col. (Chaplain) Mathews said he observed a Private Joseph
Galloway, who was a prisoner for desertion and a patient in the
mental ward at Fort MacArthur Station
Page 319 U. S. 380
Hospital, California, during a six weeks period early in 1920.
The chaplain's testimony gives strong evidence the man he observed
was insane. However, there is a fatal weakness in this evidence. In
his direct testimony, which was taken by deposition, the chaplain
said he was certain that the soldier was petitioner. When
confronted with the undisputed fact that petitioner was on active
duty in the Navy during the first half of 1920, the witness at
first stated that he might have been mistaken as to the time of his
observation. Subsequently he reasserted the accuracy of his
original statement as to the time of observation, but admitted that
he might have been mistaken in believing that the patient-prisoner
was petitioner. In this connection, he volunteered the statement,
"Might I add, sir, that I could not now identify that soldier if I
were to meet him face to face, and that is because of the long
lapse of time." The patient whom the witness saw was confined to
his bed. The record is barren of other evidence, whether by the
hospital's or the Army's records or otherwise, to show that
petitioner was either patient or prisoner at Fort MacArthur in 1920
or at any other time.
Commander Platt testified that petitioner caused considerable
trouble by disobedience and leaving ship without permission during
his naval service in the first half of 1920. After "repeated
warnings and punishments, leading to court-martials," he was
sentenced to a bad conduct discharge.
Lt. Col. James E. Matthews (not the chaplain) testified by
deposition which petitioner's attorney interrupted Dr. Wilder's
testimony to read into evidence. The witness was Galloway's
commanding officer from early 1921 to the summer of that year, when
petitioner was transferred with other soldiers to another unit. At
first, Colonel Matthews considered making petitioner a corporal,
but found him unreliable and had to discipline him. Petitioner
"drank
Page 319 U. S. 381
considerably," was "what we called a bolshevik," did not seem
loyal, and "acted as if he was not getting a square deal." The
officer concluded "he was a moral pervert, and probably used
narcotics," but could not secure proof of this. Galloway was
court-martialed for public drunkenness and disorderly conduct,
served a month at hard labor, and returned to active duty. At times
he "was one of the very best soldiers I had," at others
undependable. He was physically sound, able to do his work, perform
close order drill, etc., "very well." He had alternate periods of
gaiety and depression, talked incoherently at times, gave the
impression he would fight readily, but did not resent orders and
seemed to get along well with other soldiers. The officer
attributed petitioner's behavior to alcohol and narcotics, and it
occurred to him at no time to question his sanity.
Dr. Wilder was the key witness. He disclaimed specializing in
mental disease, but qualified as having given it "special
attention." He first saw petitioner shortly before the trial,
examined him "several times." He concluded petitioner's ailment "is
a schizophrenic branch or form of praecox." Dr. Wilder heard the
testimony and read the depositions of the other witnesses and
examined the documentary evidence. Basing his judgment upon this
material, with inferences drawn from it, he concluded petitioner
was born with "an inherent instability," though he remained normal
until he went to France; began there "to be subjected to the strain
of military life, then he began to go to pieces." In May, 1919,
petitioner "was still suffering from the acuteness of the
breakdown. . . . He is going down hill still, but the thing began
with the breakdown. . . ." Petitioner was "definitely insane, yes,
sir," in 1920 and "has been insane at all times, at least since
July, 1918, the time of this episode on the Marne" -- that is, "to
the point that he was unable to adapt himself. I don't mean he has
not had moments when he could not perform some routine tasks," but,
"from an occupational
Page 319 U. S. 382
standpoint . . . he has been insane." He could follow "a mere
matter of routine," but would have no incentive, would not keep a
steady job, come to work on time, or do anything he didn't want to
do. Dr. Wilder pointed to petitioner's work record before he
entered the service and observed: "At no time after he went into
the war do we find him able to hold any kind of a job. He broke
right down." He explained petitioner's enlistment in the Navy and
later in the Army by saying, "It would have been no trick at all
for a man who was reasonably conforming to get into the
Service." (Emphasis added.)
However, the witness knew "nothing whatever except his getting
married" about petitioner's activities between 1925 and 1930, and
what he knew of them between 1922 and 1925 was based entirely on
O'Neill's testimony and a paper not of record here. [
Footnote 7] Dr. Wilder at first regarded
knowledge concerning what petitioner was doing between 1925 and
1930 as not essential.
"We have a continuing disease, quite obviously beginning during
his military service, and quite obviously continuing in 1930, and
the minor incidents don't seem to me . . ."
(Emphasis added.) Counsel for the government interrupted to
inquire, "Well, if he was continuously employed for eight hours a
day from 1925 to 1930, would that have any hearing?" The witness
replied, "It would have a great deal." Upon further questioning,
however, he reverted to his first position, stating it would not be
necessary or helpful for him to know what petitioner was doing from
1925 to 1930: "I testified from the information I had."
II
This, we think, is the crux of the case, and distinguishes it
from the cases on which petitioner has relied. [
Footnote 8] His burden
Page 319 U. S. 383
was to prove total and permanent disability as of a date not
later than May 31, 1919. He has undertaken to do this by showing
incipience of mental disability shortly before that time and its
continuance and progression throughout the succeeding years. He has
clearly established incidence of total and permanent disability as
of some period prior to 1938, when he began this suit. [
Footnote 9] For our purposes, this may
be taken as medically established by the Veterans' Bureau
examination and diagnosis of July, 1934. [
Footnote 10]
But, if the record is taken to show that some form of mental
disability existed in 1930, which later became total and permanent,
petitioner's problem remains to demonstrate by more than
speculative inference that this condition itself began on or before
May 31, 1919, and continuously
Page 319 U. S. 384
existed or progressed through the intervening years to 1930.
To show origin before the crucial date, he gives evidence of two
abnormal incidents occurring while he was in France, one creating
the disturbance before he came near the fighting front, the other
yelling that the Germans were coming when he was on guard duty at
the Marne. There is no other evidence of abnormal behavior during
his entire service of more than a year abroad.
That he was court-martialed for these sporadic acts and bound
and gagged for one does not prove he was insane, or had then a
general breakdown in "an already fragile mental constitution,"
which the vicissitudes of a longshoreman's life had not been able
to crack.
To these two incidents petitioner adds the testimony of O'Neill
that he looked and acted like a wreck, compared with his former
self, when he returned from France about a month before the crucial
date, and O'Neill's vague recollections that this condition
continued through the next two, three, four, or five years.
O'Neill's testimony apparently takes no account of petitioner's
having spent 101 days in a hospital in France with influenza just
before he came home. But, given the utmost credence, as is
required, it does no more than show that petitioner was subject to
alternating periods of gaiety and depression for some indefinite
period after his return, extending perhaps as late as 1922. But
because of its vagueness as to time, dates, frequency of
opportunity for observation, and specific incident, O'Neill's
testimony concerning the period from 1922 to 1925 is hardly more
than speculative.
We have, then, the two incidents in France, followed by
O'Neill's testimony of petitioner's changed condition in 1919 and
its continuance to 1922. [
Footnote 11] There is also the
Page 319 U. S. 385
testimony of Commander Platt and Lt. Col. James E. Matthews as
to his service in the Navy and the Army, respectively, during
1920-1922. Neither thought petitioner was insane, or that his
conduct indicated insanity. Then follows a chasm of eight years.
The only evidence [
Footnote
12] we have concerning this period is the fact that petitioner
married his present guardian at some time within it, an act from
which in the legal sense no inference of insanity can be drawn.
This period was eight years of continuous insanity, according to
the inference petitioner would be allowed to have drawn. If so, he
should have no need of inference. Insanity so long and continuously
sustained does not hide itself from the eyes and ears of witnesses.
[
Footnote 13] The
assiduity
Page 319 U. S. 386
which produced the evidence of two "crazy" incidents during a
year and a half in France should produce one during eight years or,
for that matter, five years in the United States.
Inference is capable of bridging many gaps. But not, in these
circumstances, one so wide and deep as this. Knowledge of
petitioner's activities and behavior from 1922 or 1925 to 1930 was
peculiarly within his ken and that of his wife, who has litigated
this cause in his and presumably, though indirectly, in her own
behalf. His was the burden to show continuous disability. What he
did in this time, or did not do, was vital to his case. Apart from
the mere fact of his marriage, the record is blank for five years,
and almost blank for eight. For all that appears, he may have
worked full time and continuously for five and perhaps for eight,
with only a possible single interruption. [
Footnote 14]
No favorable inference can be drawn from the omission. It was
not one of oversight or inability to secure proof. That is shown by
the thoroughness with which the record was prepared for all other
periods, before and after this one, and by the fact petitioner's
wife, though she married him during the period and was available,
did not testify. The only reasonable conclusion is that petitioner,
or those who acted for him, deliberately chose, for reasons no
doubt considered sufficient (and which we do not criticize,
since
Page 319 U. S. 387
such matters including tactical ones, are for the judgment of
counsel) to present no evidence, or perhaps to withhold evidence
readily available, concerning this long interval, and to trust to
the genius of expert medical inference and judicial laxity to
bridge this canyon.
In the circumstances exhibited, the former is not equal to the
feat, and the latter will not permit it. No case has been cited,
and none has been found, in which inference, however expert, has
been permitted to make so broad a leap and take the place of
evidence which, according to all reason, must have been at hand.
[
Footnote 15] To allow this
would permit the substitution of inference, tenuous at best, not
merely for evidence absent because impossible or difficult to
secure, but for evidence disclosed to be available and not
produced. This would substitute speculation for proof. Furthermore,
the inference would be more plausible, perhaps, if the evidence of
insanity as of May, 1919, were stronger than it is -- such for
instance, as Chaplain Mathews' testimony would have furnished if it
could be taken as applying to petitioner. But, on this record, the
evidence of insanity as of that time is thin, at best, if it can be
regarded as at all more than speculative. [
Footnote 16]
Beyond this, there is nothing to show totality or permanence.
These come only by what the Circuit Court of Appeals rightly
characterized as "long-range retroactive diagnosis." That might
suffice, notwithstanding this crucial inference was a matter of
opinion, if there were factual evidence over which the medical eye
could travel and find continuity through the intervening years.
Cf. Halliday v. United States, supra. But eight years are
too many to permit it to skip, when the bridgeheads (if the figure
may be changed) at each end are no stronger than
Page 319 U. S. 388
they are here, and when the seer first denies, then admits, then
denies again, that what took place in this time would make "a great
deal" of difference in what he saw. Expert medical inference
rightly can do much. But we think the feat attempted here too large
for its accomplishment.
The Circuit Court of Appeals thought petitioner's enlistments
and service in the Navy and Army in 1920-1922 were in
themselves
"such physical facts as refute any reasonable inferences which
may be drawn from the evidence here presented by him that he was
totally and permanently disabled during the life of his
policy."
130 F.2d 471;
cf. Atkins v. United States, 63 App.D.C.
164, 70 F.2d 768, 771;
United States v. Le Duc, 48 F.2d
789, 793. The opinion also summarizes and apparently takes account
of the evidence presented on behalf of the Government. 130 F.2d
469, 470. In view of the ground upon which we have placed the
decision, we need not consider these matters.
III
What has been said disposes of the case as the parties have made
it. For that reason, perhaps nothing more need be said. But
objection has been advanced that, in some manner not wholly clear,
the directed verdict practice offends the Seventh Amendment.
It may be noted, first, that the Amendment has no application of
its own force to this case. The suit is one to enforce a monetary
claim against the United States. It hardly can be maintained that,
under the common law in 1791, jury trial was a matter of right for
persons asserting claims against the sovereign. [
Footnote 17] Whatever force the
Page 319 U. S. 389
Amendment has therefore is derived because Congress, in the
legislation cited, [
Footnote
18] has made it applicable. Even so, the objection made on the
score of its requirements is untenable.
If the intention is to claim generally that the Amendment
deprives the federal courts of power to direct a verdict for
insufficiency of evidence, the short answer is the contention has
been foreclosed by repeated decisions made here consistently for
nearly a century. [
Footnote
19] More recently, the practice has been approved explicitly in
the promulgation of the Federal Rules of Civil Procedure.
Cf. Rule 50;
Berry v. United States, 312 U.
S. 450. The objection therefore comes too late.
Furthermore, the argument from history is not convincing. It is
not that "the rules of the common law" in 1791 deprived trial
courts of power to withdraw cases from the
Page 319 U. S. 390
jury, because not made out, or appellate courts of power to
review such determinations. The jury was not absolute master of
fact in 1791. Then, as now, courts excluded evidence for
irrelevancy and relevant proof for other reasons. [
Footnote 20] The argument concedes they
weighed the evidence not only piecemeal, but
in toto, for
submission to the jury, by at least two procedures, the demurrer to
the evidence and the motion for a new trial. The objection is not,
therefore, to the basic thing, [
Footnote 21] which is the power of the court to withhold
cases from the jury or set aside the verdict for insufficiency of
the evidence. It is, rather, to incidental or collateral effects --
namely, that the directed verdict as now administered differs from
both those procedures because, on the one hand, allegedly higher
standards of proof are required and, on the other, different
consequences follow as to further maintenance of the litigation.
Apart from the standards of proof, the argument appears to urge
that, in 1791, a litigant could challenge his opponent's evidence
either by the demurrer, which when determined ended the litigation,
or by motion for a new trial, which, if successful, gave the
adversary another chance to prove his case, and therefore the
Amendment excluded any challenge to which one or the other of these
consequences does not attach.
The Amendment did not bind the federal courts to the exact
procedural incidents or details of jury trial according to the
common law in 1791 any more than it tied them to the common law
system of pleading or the specific rules of evidence then
prevailing. [
Footnote 22]
Nor were "the rules of the
Page 319 U. S. 391
common law" then prevalent, including those relating to the
procedure by which the judge regulated the jury's role on questions
of fact, crystalized in a fixed and immutable system . On the
contrary, they were constantly changing and developing during the
late eighteenth and early nineteenth centuries. [
Footnote 23] In 1791, this process already
had
Page 319 U. S. 392
resulted in widely divergent common law rules on procedural
matters among the states and between them and England. [
Footnote 24] And none of the
contemporaneous rules regarding judicial control of the evidence
going to juries or its sufficiency to support a verdict had reached
any precise, much less final, form. [
Footnote 25] In addition, the passage of time has
obscured much of the procedure which then may have had more or less
definite form, even for historical purposes. [
Footnote 26]
This difficulty no doubt accounts for the amorphous character of
the objection now advanced, which insists not that any single one
of the features criticized, but that the cumulative total or the
alternative effect of all, was embodied in the Amendment. The more
logical conclusion, we think, and the one which both history and
the previous decisions here support, is that the Amendment was
designed to preserve the basic institution of jury trial in only
its most fundamental elements, not the great mass of procedural
forms and details, varying even then so widely among common law
jurisdictions. [
Footnote
27]
Apart from the uncertainty and the variety of conclusion which
follows from an effort at purely historical accuracy, the
consequences flowing from the view asserted are sufficient to
refute it. It may be doubted that the Amendment requires challenge
to an opponent's case to be made without reference to the merits of
one's own and at the price of all opportunity to have it
considered. On the other hand, there is equal room for disbelieving
it
Page 319 U. S. 393
compels endless repetition of litigation and unlimited chance,
by education gained at the opposing party's expense, for perfecting
a case at other trials. The essential inconsistency of these
alternatives would seem sufficient to refute that either or both,
to the exclusion of all others, received constitutional sanctity by
the Amendment's force. The first alternative, drawn from the
demurrer to the evidence, attributes to the Amendment the effect of
forcing one admission because another and an entirely different one
is made, [
Footnote 28] and
thereby compels conclusion of the litigation once and for all. The
true effect of imposing such a risk would not be to guarantee the
plaintiff a jury trial. It would be, rather, to deprive the
defendant (or the plaintiff if he were the challenger) of that
right, or, if not that, then of the right to challenge the legal
sufficiency of the opposing case. The Amendment was not framed or
adopted to deprive either party of either right. It is impartial in
its guaranty of both. To posit assertion of one upon sacrifice of
the other would dilute and distort the full protection intended.
The admitted validity of the practice on the motion for a new trial
goes far to demonstrate this. [
Footnote 29] It negatives any idea
Page 319 U. S. 394
that the challenge must be made at such a risk as the demurrer
imposed. As for the other alternative, it is not urged that the
Amendment guarantees another trial whenever challenge to the
sufficiency of evidence is sustained.
Cf. Berry v. United
States, supra. That argument, in turn, is precluded by the
practice on demurrer to the evidence.
Each of the classical modes of challenge, therefore, disproves
the notion that the characteristic feature of the other, for effect
upon continuing the litigation, became a part of the Seventh
Amendment's guaranty to the exclusion of all others. That guaranty
did not incorporate conflicting constitutional policies, that
challenge to an opposing case must be made with the effect of
terminating the litigation finally and, at the same time, with the
opposite effect of requiring another trial. Alternatives so
contradictory give room not for the inference that one or the other
is required, but rather for the view that neither is essential.
[
Footnote 30]
Page 319 U. S. 395
Finally, the objection appears to be directed generally at the
standards of proof judges have required for submission of evidence
to the jury. But standards, contrary to the objection's assumption,
cannot be framed wholesale for the great variety of situations in
respect to which the question arises. [
Footnote 31] Nor is the matter greatly aided by
substituting one general formula for another. It hardly affords
help to insist upon "substantial evidence," rather than "some
evidence" or "any evidence," or vice versa. The matter is
essentially one to be worked out in particular situations and for
particular types of cases. Whatever may be the general formulation,
the essential requirement is that mere speculation be not allowed
to do duty for probative facts, after making due allowance for all
reasonably possible inferences favoring the party whose case is
attacked. The mere difference in labels used to describe this
standard, whether it is applied under the demurrer to the evidence
[
Footnote 32] or on motion
for a directed verdict, cannot amount to a departure from "the
rules of the common law" which the Amendment requires to be
followed. [
Footnote 33] If
there is abuse in this respect, the obvious remedy is by correction
on appellate review.
Page 319 U. S. 396
Judged by this requirement, or by any standard other than sheer
speculation, we are unable to conclude that one whose burden, by
the nature of his claim, is to show continuing and total disability
for nearly twenty years supplies the essential proof of continuity
when he wholly omits to show his whereabouts, activities, or
condition for five years, although the record discloses evidence
must have been available, and, further, throws no light upon three
additional years, except for one vaguely described and dated visit
to his former home. Nothing in the Seventh Amendment requires it
should be allowed to join forces with the jury system to bring
about such a result. That guaranty requires that the jury be
allowed to make reasonable inferences from facts proven in evidence
having a reasonable tendency to sustain them. It permits expert
opinion to have the force of fact when based on facts which sustain
it. But it does not require that experts or the jury be permitted
to make inferences from the withholding of crucial facts, favorable
in their effects to the party who has the evidence of them in his
peculiar knowledge and possession, but elects to keep it so. The
words "total and permanent" are the statute's, not our own. They
mean something more than incipient or occasional disability. We
hardly need add that we give full credence to all of the testimony.
But that cannot cure its inherent vagueness or supply essential
elements omitted or withheld.
Accordingly, the judgment is
Affirmed.
[
Footnote 1]
The contract was issued pursuant to the War Risk Insurance Act,
and insured against death or total permanent disability. Act of
Oct. 6, 1917, c. 105, § 400, 40 Stat. 398, 409. Pursuant to
statutory authority (Act of May 20, 1918, c. 77, § 13, 40 Stat.
555), T.D. 20 W.R., promulgated March 9, 1918, provided:
"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.
. . ."
(Regulations and Procedure, U.S. Veterans Bureau, Part I, p.
9.)
[
Footnote 2]
See, however, 319 U. S.
infra.
[
Footnote 3]
The record does not show whether this employment was steady and
continuous or was spotty and erratic. But there is no contention
petitioner's behavior was abnormal before he arrived in France in
April, 1918.
[
Footnote 4]
Wells heard of another incident at Monthurel in June, but his
testimony concerning this was excluded as hearsay.
[
Footnote 5]
"X Can you tell us approximately how many times you saw him in
1919?"
"A. No; I seen him so often that it would be hard to give any
estimate."
"X And the same goes
for 1920?"
"A.
I wouldn't be sure about 1920. I remember him more when
he first came home, because there was such a vast contrast in the
man. Otherwise, if nothing unusual happened, I wouldn't
probably recall him at all, you know, that is, recall the
particular time and all."
"X Well, do you recall him
at all in 1920?"
"A.
I can't say."
"X And could you swear whether or not you ever saw him in
1921?"
"A. I think I seen him both in 1921 and 1920 and 1921 and right
on. I might not see him for a few weeks or months at a time, but I
think I saw him a few times in all the years right up to, as I say,
at least five years after."
"X Can you give us an estimate as to the number of times you saw
him
in 1920?"
"A.
No, I would not."
"X
Was it more than five times or less?"
"A.
In 1920, I couldn't recall whether it was one or a
thousand. The time I recall him well is when he first come
home, but I know that I seen him right on from that at
times."
"X And the same goes for 1921, 1922, 1923, and 1924?"
"A. I would say for five years afterwards, but I don't know just
when or how often I seen him except when he first come home for the
first couple of months."
"X
But, for years after his return, you couldn't say
definitely whether you saw him five times or more or less, could
you?"
"A.
No, because it was a thing that
there was a
vast contrast when he first come home, and everybody noticed
it and remarked about it, and it was more liable to be remembered.
You could ask me about some more friends I knew during those years
and I wouldn't know except there was something unusual."
(Emphasis added.)
[
Footnote 6]
Petitioner's own evidence shows without dispute he was on active
duty in the Navy from January 15, 1920, to July of that year, and
in the Army from December, 1920, to May 6, 1922. As is noted in the
text, O'Neill was not sure he was working, and "was surprised he
got in the Navy, I think in the Navy or in the Government service."
He only "heard some talk" of petitioner's having reenlisted in the
Army, but "
if it was the fact, I would be surprised that
he could do it owing to his mental condition." (Emphasis added.)
O'Neill was not certain that he saw Galloway in uniform after the
first week of his return to Philadelphia from overseas, although he
said he saw petitioner during "the periods of those reenlistments .
. . but I can't recall about it."
[
Footnote 7]
It is to be noted the witness did not refer to Chaplain Mathews'
testimony.
[
Footnote 8]
None of them exhibits a period of comparable length as to which
evidence is wholly lacking and under circumstances which preclude
inference the omission was unintentional.
[
Footnote 9]
He has not established a fixed date at which contemporaneous
medical examination, both physical and mental, establishes totality
and permanence prior to Dr. Wilder's examinations in 1941.
Dr. Wilder testified that, on the evidence concerning
petitioner's behavior at the time of his discharge in 1919, and
without reference to the testimony as to later conduct, including
O'Neill's, he would reserve his opinion on whether petitioner was
then "crazy" -- "I wouldn't have enough. . . ."
[
Footnote 10]
The previous examinations of 1930 and 1931 show possibility of
mental disease, in the one case, and existence of psychosis with
other disease, organic in character but with type undetermined, in
the other. These two examinations, without more, do not prove
existence of total and permanent disability; on the contrary, they
go far toward showing it could not be established then
medically.
The 1930 diagnosis shows only that the examiner regarded
petitioner as a moron of low grade, and recommended he be observed
for simple dementia praecox. Dr. Wilder found no evidence in 1941
that petitioner was a moron. The 1931 examination is even less
conclusive in one respect, namely, that "psychosis" takes the place
of moronic status. Dr. Wilder also disagreed with this diagnosis.
However, this examination first indicates existence of organic
nervous disease. Not until the 1934 diagnosis is there one which
might be regarded as showing possible total and permanent
disability by medical evidence contemporaneous with the fact.
[
Footnote 11]
Chaplain Mathews' testimony would be highly probative of
insanity existing early in 1920 if petitioner were sufficiently
identified as its subject. However, the bare inference of identity
which might otherwise be drawn from the mere identity of names
cannot be made reasonably in view of its overwhelming contradiction
by other evidence presented by petitioner and the failure to
produce records from Fort MacArthur Hospital or the Army or from
persons who knew the fact that petitioner had been there at any
time. The omission eloquently testifies in a manner which no
inference could overcome that petitioner never was there. The
chaplain's testimony therefore should have been stricken, had the
case gone to the jury, and petitioner can derive no aid from it
here.
Tanikawa, it may be recalled, did not profess to have seen
petitioner between October, 1918, and 1936.
[
Footnote 12]
Apart from O'Neill's vague recollection of petitioner's return
to Philadelphia on one occasion.
[
Footnote 13]
The only attempt to explain the absence of testimony concerning
the period from 1922 to 1930 is made by counsel in the reply
brief:
"The insured, it will be observed, was never apprehended after
his desertion from the Army in 1922. It is only reasonable that a
person with the status of a deserter at large . . . whose mind was
in the condition of that of this insured, would absent himself from
those with whom he would usually associate because of fear of
apprehension and punishment. His mental condition . . . at the time
of trial . . . clearly shows that he could not have testified. . .
. A lack of testimony from 1922 to 1930 is thus explained, and the
jury could well infer that only the then [1941?] admittedly insane
insured was in a position to know where he was and what he was
doing during those years; as he had lost his mental faculties, the
reason for lack of proof during these years is apparent."
The "explanation" is obviously untenable. It ignores the one
fact proved with relation to the period -- that petitioner was
married during it. His wife was nominally a party to the suit, and
obviously available as a witness. It disregards the fact petitioner
continued in the status of deserter after 1930, yet produced
evidence relating to the period from that time on. It assumes he
was insane during the eight years, yet succeeded during that long
time in absenting himself from persons who could testify in his
favor.
[
Footnote 14]
Cf. note 12
supra.
[
Footnote 15]
Compare Bishop v. Copp, 96 Conn. 571, 580, 114 A. 682;
Murphree v. Senn, 107 Ala. 424, 18 So. 264;
Aldrich v.
Aldrich, 215 Miss. 164, 102 N.E. 487.
[
Footnote 16]
Cf. Dr. Wilder's admission,
note 9 supra.
[
Footnote 17]
Neither the Amendment's terms nor its history suggest it was
intended to extend to such claims. The Court of Claims has
functioned for almost a century without affording jury trial in
cases of this sort and without offending the requirements of the
Amendment.
McElrath v. United States, 102 U.
S. 426;
see Richardson, History, Jurisdiction
and Practice of the Court of Claims (2d ed. 1885).
Cf.
also note 18
infra.
[
Footnote 18]
43 Stat. 1302, 38 U.S.C. § 445;
see H.R.Rep. No. 1518,
68th Cong., 2d Sess., 2;
Pence v. United States,
316 U. S. 332,
316 U. S. 334;
Whitney v. United States, 8 F.2d 476;
Hacker v. United
States, 16 F.2d 702.
Although Congress, in first permitting suits on War Risk
Insurance policies, did not explicitly make them triable by jury,
40 Stat. 398, 410, the statute was construed to import "the usual
procedure . . . in actions at law for money compensation."
Law
v. United States, 266 U. S. 494,
266 U. S. 496.
In amending that Act, Congress provided that, except for
differences not relevant here, the "procedure in such suits shall .
. . be the same as that provided for suits" under the Tucker Act.
43 Stat. 607, 613. Suits under the Tucker Act were tried without a
jury (24 Stat. 505). However, within a year (in 1925) Congress
amended that Act (43 Stat. 1302) with the intention to "give the
claimant the right to a jury trial." H.R.Rep. No. 1518, 68th Cong.,
2d Sess., 2.
[
Footnote 19]
See e.g., 52 U. S. Ross,
11 How. 362;
Improvement Co. v.
Munson, 14 Wall. 442;
Pleasants
v. Fant, 22 Wall. 116;
Commissioners of Marion
County v. Clark, 94 U. S. 278;
Ewing v. Goode, 78 F. 442;
cf. Southern Ry. Co. v.
Walters, 284 U. S. 190;
Gunning v. Cooley, 281 U. S. 90.
[
Footnote 20]
Compare, e.g., 3 Gilbert, The Law of Evidence (1792)
1181-5;
Rex v. Paine, 5 Mod. 163;
Folkes v.
Chadd, 3 Doug. 157.
[
Footnote 21]
Cf. Thoe v. Chicago, M. & St. P.Ry. Co., 181 Wis.
456, 195 N.W. 407.
[
Footnote 22]
Ex parte Peterson, 253 U. S. 300;
Gasoline Products Co. v. Champlin Refining Co.,
283 U. S. 494;
Walker v. New Mexico & Southern Pacific R. Co.,
165 U. S. 593;
Capital Traction Co. v. Hof, 174 U. S.
1;
cf. Stone, J., dissenting in
Dimick v.
Schiedt, 293 U. S. 474,
293 U. S. 490.
The rules governing the admissibility of evidence, for example,
have a real impact on the jury's function as a trier of facts and
the judge's power to impinge on that function. Yet it would hardly
be maintained that the broader rules of admissibility now prevalent
offend the Seventh Amendment because, at the time of its adoption,
evidence now admitted would have been excluded.
Cf. e.g., Funk
v. United States, 290 U. S. 371.
[
Footnote 23]
E.g., during the eighteenth and nineteenth centuries,
the nonsuit was being transformed in practice from a device by
which a plaintiff voluntarily discontinued his action in order to
try again another day into a procedure by which a defendant could
put in issue the sufficiency of the plaintiff's evidence to go to
the jury, differing from the directed verdict in that respect only
in form.
Compare Blackstone's Commentaries, Book III
(Cooley's ed., 1899) 376; Johnson, J., dissenting in
Elmore v.
Grymes, 1 Pet. 469;
Oscanyan v. Winchester Arms
Co., 103 U. S. 261,
103 U. S. 264;
Coughran v. Bigelow, 164 U. S. 301;
see the historical survey in the comprehensive opinion of
McAllister, J., in
Hopkins v. Railroad, 96 Tenn. 409, 34
S.W. 1029.
See generally 2 Tidd's Practice (4th Amer. ed.,
1856) 861, 866-8. The nonsuit, of course, differed in consequence
from the directed verdict, for it left the plaintiff free to try
again.
Oscanyan v. Winchester Arms Co., supra; Tidd's
Practice,
supra.
Similarly, the demurrer to the evidence practice was not static
during this period, as a comparison of
Cocksedge v.
Fanshaw, 1 Doug. 118,
with Gibson v. Hunter,, 2 H.Bl.
187, and the American practice on the demurrer to the evidence
reveals (
see, e.g., Stephens v. White, 2 Wash. 203;
Patrick v. Hallett, 1 Johns. 241;
Whittington v.
Christian, 2 Rand. 353.
See generally Schofield, New
Trials and the Seventh Amendment, 8 Ill.L.Rev. 287, 381, 465;
Thayer, Preliminary Treatise on Evidence (1898) 234-239). Nor was
the conception of directing a verdict entirely unknown to the
eighteenth century common law.
See, e.g., Wilkinson v.
Kitchin, 1 Ld.Raymond 89 (K.B.);
Syderbottom v.
Smith, 1 Strange 649. While there is no reason to believe that
the notion at that time even approximated in character the present
directed verdict, the cases serve further to show the plastic and
developing character of these procedural devices during the
eighteenth and nineteenth centuries.
[
Footnote 24]
See, e.g., Quincy's Mass. Reports 553-72.
[
Footnote 25]
See note 23
supra.
[
Footnote 26]
See, e.g., Schofield, New Trials and the Seventh
Amendment, 8 Ill.L.Rev. 287, 381, 465.
[
Footnote 27]
Cf. notes
22 and
23 supra.
[
Footnote 28]
By conceding the full scope of an opponent's evidence and
asserting its insufficiency in law, which is one thing, the
challenger must be taken, perforce the Amendment, also to admit he
has no case if the other's evidence is found legally sufficient,
which is quite another thing. In effect, one must stake his case
not upon its own merit on the facts, but on the chance he may be
right in regarding his opponent's as wanting in probative content.
If he takes the gamble and loses, he pays with his own case,
regardless of its merit and without opportunity for the jury to
consider it. To force this choice and yet deny that afforded by the
directed verdict would be to imbed in the Constitution the
hypertechnicality of common law pleading and procedure in their
heyday.
Cf. note 22
supra.
[
Footnote 29]
Under that practice, the moving party receives the benefit of
jury evaluation of his own case and of challenge to his opponent's
for insufficiency. If he loses on the challenge, the litigation is
ended. But this is not because, in making it, he is forced to admit
his own is insufficient. It is, rather, for the reasons that the
court finds the opposite party's evidence is legally sufficient,
and the jury has found it outweighs his own. There is thus no
forced surrender of one right from assertion of another.
On the other hand, if the challenger wins, there is another
trial. But this is because he has sought it, not because the
Amendment guarantees it.
[
Footnote 30]
We have not given special consideration to the latest decisions
touching the Amendment's effects in the different situations where
a verdict has been taken, on the one hand, without reservation of
the question of the sufficiency of the evidence,
Slocum v. New
York Life Ins. Co., 228 U. S. 364,
and, on the other hand, with such a reservation,
Baltimore
& Carolina Line, Inc. v. Redman, 295 U.
S. 654.
Cf. Aetna Ins. Co. v. Kennedy,
301 U. S. 389.
Whatever may be the exact effect of the latter and, more recently,
of Rule 50 of the Federal Rules of Civil Procedure upon the former
decision, it suffices to say that, notwithstanding the sharp
division engendered in the
Slocum case, there was no
disagreement in it or in the
Redman case concerning the
validity of the practice of directing a verdict. On the contrary,
the opinions make it plain that this was unquestioned, and in fact
conceded by all.
[
Footnote 31]
Cf. 9 Wigmore, Evidence (1940) 296-299.
[
Footnote 32]
Cf., e.g., 24 U. S.
Alexandria, 11 Wheat. 320,
24 U. S. 323, a
demurrer to the evidence admits "whatever the jury may reasonably
infer from the evidence."
Pawling v. United
States, 4 Cranch 219,
8 U. S. 221-222.
A demurrant to the evidence admits
"the truth of the testimony to which he demurs and also those
conclusions of fact which a jury may fairly draw from that
testimony. Forced and violent inferences he does not admit; but the
testimony is to be taken most strongly against him, and such
conclusions as a jury might justifiably draw, the court ought to
draw."
Cocksedge v. Fanshaw, supra; Patrick v. Hallett, supra;
Stephens v. White, supra.
[
Footnote 33]
Cf. Hughes, J., dissenting in
Slocum v. New York
Life Ins. Co., 228 U. S. 364,
228 U. S. 408,
and cases cited
supra, note 22
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE
MURPHY concur, dissenting.
The Seventh Amendment to the Constitution provides:
"In suits at common law where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall
Page 319 U. S. 397
be otherwise reexamined in any Court of the United States, than
according to the rules of the common law."
The Court here reexamines testimony offered in a common law
suit, weighs conflicting evidence, and holds that the litigant may
never take this case to a jury. The founders of our government
thought that trial of fact by juries, rather than by judges, was an
essential bulwark of civil liberty. [
Footnote 2/1] For this reason, among others, they
adopted Article III, § 2 of the Constitution, and the Sixth and
Seventh Amendments. Today's decision marks a continuation of the
gradual process of judicial erosion which, in one hundred fifty
years, has slowly worn away a major portion of the essential
guarantee of the Seventh Amendment.
I
Alexander Hamilton, in The Federalist, emphasized his loyalty to
the jury system in civil cases and declared that jury verdicts
should be reexamined, if at all, only
"by a second jury, either by remanding the cause to the court
below for a second trial of the fact or by directing an issue
immediately out of the Supreme Court."
He divided the citizens of his time between those who thought
that
Page 319 U. S. 398
jury trial was a "valuable safeguard to liberty" and those who
thought it was "the very palladium of free government." However, he
felt it unnecessary to include in the Constitution a specific
provision placing jury trial in civil cases in the same high
position as jury trial in criminal cases. [
Footnote 2/2]
Hamilton's view, that constitutional protection of jury trial in
civil cases was undesirable, did not prevail. On the contrary, in
response to widespread demands from the various State
Constitutional Conventions, the first Congress adopted the Bill of
Rights containing the Sixth and Seventh Amendments, intended to
save trial in both criminal and common law cases from legislative
or judicial abridgment. [
Footnote
2/3] The first Congress expected the Seventh Amendment to meet
the objections of men like Patrick Henry to the Constitution
itself. Henry, speaking in the Virginia Constitutional Convention,
had expressed the general conviction of the people of the Thirteen
States when he said,
"Trial by jury is the best appendage of freedom. . . . We are
told that we are to part with that trial by jury with which our
ancestors secured their lives and property. . . . I hope we shall
never be induced by such arguments to part with that excellent mode
of trial. No appeal can now be made as to fact in common law suits.
The unanimous verdict of impartial men cannot be reversed.
[
Footnote 2/4]"
The first Congress therefore
Page 319 U. S. 399
provided for trial of common law cases by a jury, even when such
trials were in the Supreme Court itself. 1 Stat. 73, 81.
In 1789, juries occupied the principal place in the
administration of justice. They were frequently, in both criminal
[
Footnote 2/5] and civil cases, the
arbiters not only of fact, but of law. Less than three years after
the ratification of the Seventh Amendment, this Court called a jury
in a civil case brought under our original jurisdiction. There was
no disagreement as to the facts of the case. Chief Justice Jay,
charging the jury for a unanimous Court, three of whose members had
sat in the Constitutional Convention, said:
"For as, on the one hand, it is presumed, that juries are the
best judges of facts, it is, on the other hand, presumable that the
court[s] are the best judges of law. But still, both objects are
lawfully within your power of decision."
Georgia v.
Brailsford, 3 Dall. 1,
3
U. S. 4. Similar views were held by state courts in
Connecticut, Massachusetts, Illinois, Louisiana and presumably
elsewhere. [
Footnote 2/6]
The principal method by which judges prevented cases from going
to the jury in the Seventeenth and Eighteenth Centuries was by the
demurrer to the evidence, under
Page 319 U. S. 400
which the defendant, at the end of the trial, admitted all facts
shown by the plaintiff as well as all inferences which might be
drawn from the facts, and asked for a ruling of the Court on the
"law of the case." [
Footnote 2/7]
See, for example, Wright v. Pindar, (1647) Alleyn 18, and
Pawling v. United
States, 4 Cranch 219. This practice fell into
disuse in England in 1793,
Gibson v. Hunter, 2 H.Bl. 187,
and in the United States federal courts in 1826,
Fowle v.
Alexandria, 11 Wheat. 320. The power of federal
judges to comment to the jury on the evidence gave them additional
influence.
M'Lanahan v. Universal
Insurance Co., 1 Pet. 170. The right of involuntary
nonsuit of a plaintiff, which might have been used to expand
judicial power at jury expense was at first denied federal courts.
Elmore v.
Grymes, 1 Pet. 469;
DeWolf v.
Rabaud, 1 Pet. 476;
but cf. Coughran v.
Bigelow, 164 U. S. 301.
As Hamilton had declared in The Federalist, the basic judicial
control of the jury function was in the court's power to order a
new trial. [
Footnote 2/8] In 1830,
this Court said:
"The only modes known to the common law to reexamine such facts
are the granting of a new trial by the court where the issue was
tried, or to which the record was properly returnable, or the award
of a
venire facias de novo, by an appellate court, for
some error of law which intervened in the proceedings."
Parsons v. Bedford, supra, at
28 U. S. 448.
[
Footnote 2/9] That retrial by a
new jury, rather than factual
Page 319 U. S. 401
reevaluation by a court, is a constitutional right of genuine
value was restated as recently as
Slocum v. New York Life
Insurance Co., 228 U. S. 364.
[
Footnote 2/10]
A long step toward the determination of fact by judges, instead
of by juries, was the invention of the directed verdict. [
Footnote 2/11] In 1850, what seems to
have been the first directed
Page 319 U. S. 402
verdict case considered by this Court,
Parks v.
Ross, 11 How. 362,
52 U. S. 374,
was presented for decision. The Court held that the directed
verdict serves the same purpose as the demurrer to the evidence,
and that, since there was "no evidence whatever" [
Footnote 2/12] on the critical issue in the case,
the directed verdict was approved. [
Footnote 2/13] The decision was an innovation, a
departure from the traditional rule restated only fifteen years
before in
Greenleaf v.
Birth, 9 Pet. 292,
34 U. S. 299,
in which this Court had said:
"Where there is no evidence tending to prove a particular fact,
the court[s] are bound so to instruct the jury, when requested, but
they cannot legally give any instruction which shall take from the
jury the right of weighing the evidence and determining what effect
it shall have."
This new device contained potentialities for judicial control of
the jury which had not existed in the demurrer to the evidence. In
the first place, demurring to the evidence
Page 319 U. S. 403
was risky business, for, in so doing, the party not only
admitted the truth of all the testimony against him, but also all
reasonable inferences which might be drawn from it, and, upon
joinder in demurrer, the case was withdrawn from the jury while the
court proceeded to give final judgment either for or against the
demurrant.
Hopkins v. Railroad, 96 Tenn. 409, 34 S.W.
1029;
Suydam v.
Williamson, 20 How. 427,
61 U. S. 436;
Bass v. Rublee, 76 Vt. 395, 400, 57 A. 965. Imposition of
this risk was no mere technicality, for, by making withdrawal of a
case from the jury dangerous to the moving litigant's cause, the
early law went far to assure that facts would never be examined
except by a jury. Under the directed verdict practice, the moving
party takes no such chance, for if his motion is denied, instead of
suffering a directed verdict against him, his case merely continues
into the hands of the jury. The litigant not only takes no risk by
a motion for a directed verdict, but, in making such a motion,
gives himself two opportunities to avoid the jury's decision; for,
under the federal variant of judgment notwithstanding the verdict,
the judge may reserve opinion on the motion for a directed verdict
and then give judgment for the moving party after the jury was
formally found against him. [
Footnote
2/14] In the second place, under the directed verdict practice,
the courts soon abandoned the "admission of all facts and
reasonable inferences" standard referred to, and created the
so-called "substantial evidence" rule, which permitted directed
verdicts even though there was far more evidence in the case than a
plaintiff would have needed to withstand a demurrer.
The substantial evidence rule did not spring into existence
immediately upon the adoption of the directed verdict device. For a
few more years, [
Footnote 2/15]
federal judges
Page 319 U. S. 404
held to the traditional rule that juries might pass finally on
facts if there was "any evidence" to support a party's contention.
The rule that a case must go to the jury unless there was "no
evidence" was completely repudiated in
Improvement Co. v.
Munson, 14 Wall. 442,
81 U. S.
447-448, upon which the Court today relies in part.
There, the Court declared that "some" evidence was not enough --
there must be evidence sufficiently persuasive to the judge so that
he thinks "a jury can properly proceed." The traditional rule was
given an ugly name, "the scintilla rule," to hasten its demise. For
a time, traces of the old formula remained, as in
Randall v. B.
& O. R. Co, 109 U. S. 478, but
the new spirit prevailed.
See, for example, Pleasants v. Fant,
supra, and
Commissioners v. Clark, 94 U. S.
278. The same transition from jury supremacy to jury
subordination through judicial decisions took place in State
courts. [
Footnote 2/16]
Later cases permitted the development of added judicial control.
[
Footnote 2/17] New and totally
unwarranted formulas, which should surely be eradicated from the
law at the first opportunity, were added as recently as 1929 in
Gunning v. Cooley, 281 U. S. 90,
which, by sheerest dictum, made new encroachments on the jury's
constitutional functions. There, it was announced that a judge
might weigh the evidence to determine whether he, and not the
jury,
Page 319 U. S. 405
thought it was "overwhelming" for either party, and then direct
a verdict.
Cf. Pence v. United States, 316 U.
S. 332,
316 U. S. 340;
Gunning v. Cooley, at
281 U. S. 94,
also suggests, quite unnecessarily for its decision, that,
"When a plaintiff produces evidence that is consistent with an
hypothesis that the defendant is not negligent, and also with one
that he is, his proof tends to establish neither."
This dictum, which assumes that a judge can weigh conflicting
evidence with mathematical precision and which wholly deprives the
jury of the right to resolve that conflict, was applied in
Pennsylvania R. Co. v. Chamberlain, 288 U.
S. 333. With it and other tools, jury verdicts on
disputed facts have been set aside or directed verdicts authorized
so regularly as to make the practice commonplace, while the motion
for directed verdict itself has become routine.
See, for
example, Southern Railway Co. v. Walters, 284 U.
S. 190;
Atlantic Coast Line v. Temple,
285 U. S. 143;
Lumbra v. United States, 290 U. S. 551;
Pence v. United States, supra, and
De Zon v. United
States, 318 U. S. 660.
Even
Gunning v. Cooley, at
281 U. S. 94,
acknowledged that "issues that depend on the credibility of
witnesses . . . are to be decided by the jury." [
Footnote 2/18] Today, the Court comes dangerously
close to weighing the credibility of a witness and rejecting his
testimony because the majority do not believe it.
The story thus briefly told depicts the constriction of a
constitutional civil right and should not be continued.
Page 319 U. S. 406
Speaking of an aspect of this problem, a contemporary writer saw
the heart of the issue:
"Such a reversal of opinion [as that of a particular State court
concerning the jury function], if it were isolated, might have
little significance, but when many other courts throughout the
country are found to be making the same shift, and to be doing so
despite the provisions of statutes and constitutions, there is
revealed one aspect of that basic conflict in the legal history of
America -- the conflict between the people's aspiration for
democratic government [
Footnote
2/19] and the judiciary's desire for the orderly supervision of
public affairs by judges. [
Footnote
2/20]"
The language of the Seventh Amendment cannot easily be improved
by formulas. [
Footnote 2/21] The
statement of a district judge in
Tarter v. United States,
17 F. Supp. 691, 692, 693, represents, in my opinion, the minimum
meaning of the Seventh Amendment:
"The Seventh Amendment to the Constitution guarantees a jury
trial in law cases, where there is substantial
Page 319 U. S. 407
evidence to support the claim of the plaintiff in an action. If
a single witness testifies to a fact sustaining the issue between
the parties, or if reasoning minds might reach different
conclusions from the testimony of a single witness, one of which
would substantially support the issue of the contending party, the
issue must be left to the jury. Trial by jury is a fundamental
guaranty of the rights of the people, and judges should not search
the evidence with meticulous care to deprive litigants of jury
trials."
The call for the true application of the Seventh Amendment is
not to words, but to the spirit of honest desire to see that
Constitutional right preserved. Either the judge or the jury must
decide facts, and, to the extent that we take this responsibility,
we lessen the jury function. Our duty to preserve this one of the
Bill of Rights may be peculiarly difficult, for here it is our own
power which we must restrain. We should not fail to meet the
expectation of James Madison, who, in advocating the adoption of
the Bill of Rights, said:
"Independent tribunals of justice will consider themselves in a
peculiar manner the guardians of those rights; . . . they will be
naturally led to resist every encroachment upon rights expressly
stipulated for in the Constitution by the declaration of
right."
So few of these cases come to this Court that, as a matter of
fact, the judges of the District Courts and the Circuit Courts of
Appeal are the primary custodians of the Amendment. As for myself,
I believe that a verdict should be directed, if at all, only when,
without weighing the credibility of the witnesses, there is in the
evidence no room whatever for honest difference of opinion over the
factual issue in controversy. I shall continue to believe that, in
all other cases, a judge should, in obedience to the command of the
Seventh Amendment, not interfere with the jury's function. Since
this is a matter of high constitutional importance, appellate
courts should be alert to insure the preservation of this
constitutional right even though each case necessarily turns on its
peculiar circumstances.
Page 319 U. S. 408
II
The factual issue for determination here is whether the
petitioner incurred a total and permanent disability not later than
May 31, 1919. It is undisputed that the petitioner's health was
sound in 1918, and it is evidently conceded that he was disabled at
least since 1930. When, in the intervening period, did the
disability take place?
A doctor who testified diagnosed the petitioner's case as a
schizophrenic form of dementia praecox. He declared it to be sound
medical theory that, while a normal man can retain his sanity in
the face of severe mental or physical shock, some persons are born
with an inherent instability, so that they are mentally unable to
stand sudden and severe strain. The medical testimony was that this
petitioner belongs to the latter class, and that the shock of
actual conflict on the battlefront brought on the incurable
affliction from which he now suffers. The medical witness testified
that the dominant symptoms of the condition are extreme
introversion and preoccupation with personal interests, a
persecution complex, and an emotional instability which may be
manifested by extreme exhilaration alternating with unusual
depression or irrational outbursts. Persons suffering from this
disease are therefore unable to engage in continuous
employment.
The petitioner relies on the testimony of wartime and postwar
companions and superiors to show that his present mental condition
existed on the crucial date. There is substantial testimony from
which reasonable men might conclude that the petitioner was insane
from the date claimed.
Two witnesses testify as to the petitioner's mental
irresponsibility while he was in France. The most striking incident
in this testimony is the account of his complete breakdown while on
guard duty as a result of which he falsely alarmed his military
unit by screaming that the
Page 319 U. S. 409
Germans were coming when they were not, and was silenced only by
being forceably bound and gagged. There was also other evidence
that Galloway became nervous, irritable, quarrelsome, and turbulent
after he got to France. The Court disposes of this testimony, which
obviously indicates some degree of mental unbalance, by saying no
more than that it "does not prove he was insane." No reason is
given, nor can I imagine any, why a jury should not be entitled to
consider this evidence and draw its own conclusions.
The testimony of another witness, O'Neill, was offered to show
that the witness had known the petitioner both before and after the
war, and that, after the war, the witness found the petitioner a
changed man; that the petitioner imagined that he was being
persecuted, and that the petitioner suffered from fits of
melancholia, depression, and weeping. If O'Neill's testimony is to
be believed, the petitioner suffered the typical symptoms of a
schizophreniac for some years after his return to this country;
therefore, if O'Neill's testimony is believed, there can be no
reasonable doubt about the right of a jury to pass on this case.
The Court analyzes O'Neill's testimony for internal consistency,
criticizes his failure to remember the details of his association
with the petitioner fifteen years before his appearance in this
case, and concludes that O'Neill's evidence shows no more than that
"petitioner was subject to alternating periods of gaiety and
depression for some indefinite period." This extreme emotional
instability is an accepted symptom of the disease from which the
petitioner suffers. If he exhibited the same symptoms in 1922, it
is, at the minimum, probable that the condition has been continuous
since an origin during the war. O'Neill's testimony, coupled with
the petitioner's present condition, presents precisely the type of
question which a jury should resolve.
Page 319 U. S. 410
The petitioner was in the Navy for six months in 1920, until he
was discharged for bad conduct, and later was in the Army during
1921 and a part of 1922 until he deserted. The testimony of his
Commanding Officer while he was in the Army, Col. Matthews, is that
the petitioner had "periods of gaiety and exhilaration," and was
then "depressed as if he had had a hangover;" that petitioner tried
to create disturbances and dissatisfy the men; that he suffered
from a belief that he was being treated unfairly, and that
generally his actions "were not those of a normal man." The Colonel
was not a doctor, and might well not have recognized insanity had
he seen it; as it was, he concluded that the petitioner was an
alcoholic and a narcotic addict. However, the officer was unable,
upon repeated investigations, to discover any actual use of
narcotics. A jury fitting this information into the general pattern
of the testimony might well have been driven to the conclusion that
the petitioner was insane at the time the Colonel had him under
observation.
All of this evidence, if believed, showed a man, healthy and
normal before he went to the war, suffering for several years after
he came back from a disease which had the symptoms attributed to
schizophrenia, and who was insane from 1930 until his trial. Under
these circumstances, I think that the physician's testimony of
total and permanent disability by reason of continuous insanity
from 1918 to 1938 was reasonable. The fact that there was no direct
testimony for a period of five years, while it might be the basis
of fair argument to the jury by the government, does not, as the
Court seems to believe, create a presumption against the petitioner
so strong that his case must be excluded from the jury entirely.
Even if, during these five years, the petitioner was spasmodically
employed, we could not conclude that he was not totally and
permanently disabled.
Berry v. United States, 312 U.
S. 450,
312 U. S. 455.
It is not doubted that
Page 319 U. S. 411
schizophrenia is permanent even though there may be a momentary
appearance of recovery.
The court below concluded that the petitioner's admission into
the military service between 1920 and 1923 showed conclusively that
he was not totally and permanently disabled. Any inference which
may be created by the petitioner's admission into the Army and the
Navy is more than met by his record of court-martial, dishonorable
discharge, and desertion, as well as by the explicit testimony of
his Commanding Officer, Colonel Matthews.
This case graphically illustrates the injustice resulting from
permitting judges to direct verdicts instead of requiring them to
await a jury decision and then, if necessary, allow a new trial.
The chief reason given for approving a directed verdict against
this petitioner is that no evidence except expert medical testimony
was offered for a five- to eight-year period. Perhaps, now that the
petitioner knows he has insufficient evidence to satisfy a judge
even though he may have enough to satisfy a jury, he would be able
to fill this time gap to meet any judge's demand. If a court would
point out on a motion for new trial that the evidence as to this
particular period was too weak, the petitioner would be given an
opportunity to buttress the physician's evidence. If, as the Court
believes, insufficient evidence has been offered to sustain a jury
verdict for the petitioner, we should at least authorize a new
trial.
Cf. Garrison v. United States, 62 F.2d 41, 42.
I believe that there is a reasonable difference of opinion as to
whether the petitioner was totally and permanently disabled by
reason of insanity on May 31, 1919, and that his case therefore
should have been allowed to go to the jury. The testimony of fellow
soldiers, friends, supervisors, and of a medical expert whose
integrity and ability is not challenged cannot be rejected by any
process available to me as a judge.
[
Footnote 2/1]
"I consider trial by jury as the only anchor ever yet imagined
by man by which a government can be held to the principles of its
constitution." 3 Writings of Thomas Jefferson (Washington ed.)
71.
The operation of the jury trial system in civil cases has been
subject to careful analysis: Clark and Shulman, Jury Trial in Civil
Cases, 43 Yale L.Jour. 867; Harris, Is the Jury Vanishing, 7
N.Y.U.L.Q. 657. Its utility has been sharply criticized: Pound,
Jury -- England and United States, 8 Encyclopedia of the Social
Sciences 492; Mr. Justice Miller, The System of Trial by Jury, 21
American L.Rev. 859 (1887). On the other hand, this Court has on
occasion warmly praised this mode of trial:
"The right of jury trial in civil cases at common law is a basic
and fundamental feature of our system of federal jurisprudence
which is protected by the Seventh Amendment. A right so fundamental
and sacred to the citizen, whether guaranteed by the Constitution
or provided by statute, should be jealously guarded by the
courts."
Jacob v. New York, 315 U. S. 752.
[
Footnote 2/2]
For Hamilton's views on the place of the jury in the
Constitution,
see The Federalist, Nos. 81 and 83.
[
Footnote 2/3]
"One of the strongest objections originally taken against the
constitution of the United States was the want of an express
provision securing the right of trial by jury in civil cases."
Parsons v.
Bedford. 3 Pet. 433,
28 U. S. 446.
Of the seven States which, in ratifying the Constitution, proposed
amendments, six included proposals for the preservation of jury
trial in civil cases. Documents Illustrative of the Formation of
the Constitution, House Doc. No. 398, 69th Cong., 1st Sess., pp.
1019 (Massachusetts), 1026 (New Hampshire), 1029 (Virginia), 1036
(New York), 1046 (North Carolina), 1054 (Rhode Island).
[
Footnote 2/4]
3 Elliott's Debates, 324, 544. Emphasis added.
[
Footnote 2/5]
The early practice under which juries were empowered to
determine issues of law in criminal cases was not formally rejected
by this Court until 1894, in
Sparf v. United States,
156 U. S. 51, when
the subject was exhaustively discussed.
See also Howe,
Juries as Judges of Criminal Law, 52 Harv.L.Rev. 582. This jury
privilege was once considered of high value; in fact, a principal
count in the impeachment proceedings against Justice Chase in 1805
was that he had denied to a jury the right to determine both the
law and the fact in a criminal case -- a charge which Justice Chase
denied. Report of Trial of Hon. Samuel Chase (1805), appendix p.
17. This privilege is still at least nominally retained for the
jury in some states. Howe, 614. For a late 19th Century statement
of this view,
see Kane v. Commonwealth, 89 Pa.St. 522.
[
Footnote 2/6]
See Howe,
supra, pp. 597, 601, 605, 610;
Coffin v. Coffin, 4 Mass. 1, 25; Thayer on Evidence (1898
ed.) 254.
And see Lectures given by Justice Wilson as
Professor of Law at the College of Philadelphia in 1790 and 1792,
Thayer, 254, and
Sparf v. United States, supra, at
156 U. S.
158.
[
Footnote 2/7]
I assume for the purpose of this discussion, without deciding
the point, that the adoption of the Seventh Amendment was meant to
have no limiting effect on the contemporary demurrer to evidence
practice.
[
Footnote 2/8]
A method used in early England of reversal of a jury verdict by
the process of attaint, which required a review of the facts by a
new jury of twenty-four and resulted in punishment of the first
jury for its error, had disappeared. Plucknett, A Concise History
of the Common Law (2d ed.) 121.
[
Footnote 2/9]
It is difficult to describe by any general proposition the
circumstances under which a new trial would be allowed under early
practice, since each case was so dependent on its peculiar facts.
The early Pennsylvania rule was put as follows:
"New trials are frequently necessary for the purpose of
attaining complete justice, but the important right of trial by
jury requires they should never be granted without solid and
substantial reasons; otherwise, the province of jurymen might be
often transferred to the judges, and they, instead of the jury,
would become the real triers of the facts. A reasonable doubt,
barely, that justice has not been done, especially in cases where
the value or importance of the cause is not great, appears to me to
be too slender a ground for them. But whenever it appears with a
reasonable certainty that actual and manifest injustice is done, or
that the jury have proceeded on an evident mistake, either in point
of law or fact, or contrary to strong evidence, or have grossly
misbehaved themselves, or given extravagant damages, the court will
always give an opportunity, by a new trial, of rectifying the
mistakes of the former jury, and of doing complete justice to the
parties."
Cowperthwaite v.
Jones, 2 Dall. 55. For expressions in substantial
accord,
See Maryland Insurance Co. v.
Ruden's Administrator, 6 Cranch 338,
10 U. S. 340;
M'Lanahan v. Universal
Insurance Co., 1 Pet. 170,
26 U. S. 183.
For similar State practice,
see Utica Insurance Co. v.
Badger, 3 Wend. 102;
New York Firemen Insurance Co. v.
Walden, 12 Johns. 513. The motion for new trial was addressed
to the discretion of the trial judge, and was not reviewable in
criminal or civil cases.
United States v.
Daniel, 6 Wheat. 542,
19 U. S. 548;
Brown v. Clarke,
4 How. 4,
45 U. S. 15. The
number of new trials permitted in a given case were usually limited
to two or three;
see, e.g., Louisville & Nashville R. Co.
v. Woodson, 134 U. S. 614. The
power of the judge was thus limited to his authority to return the
case to a new jury for a new decision.
[
Footnote 2/10]
Cf. Baltimore & Carolina Line v. Redman,
295 U. S. 654;
Aetna Insurance Co. v. Kennedy, 301 U.
S. 389.
See Rule 50(b) of the Rules of Civil
Procedure;
Montgomery Ward & Co. v. Duncan,
311 U. S. 243;
Berry v. United States, 312 U. S. 450.
[
Footnote 2/11]
I do not mean to minimize other forms of judicial control. In a
summary of important techniques of judicial domination of the jury,
Thayer lists the following: control by the requirement of a
"reasonable judgment" --
i.e., one satisfactory to the
judge; control of the rules of "presumption,"
cf. the
dissenting opinion in
New York Life Insurance Co. v.
Gamer, 303 U. S. 161,
303 U. S. 172;
the control of the "definition of language;" the control of rules
of practice, and forms of pleading ("It is remarkable how judges
and legislatures in this country are unconsciously traveling back
towards the old result of controlling the jury, by requiring
special verdicts and answers to specific questions. Logic and
neatness of legal theory have always called loud, at least in
recent centuries, for special verdicts. . . . Considerations of
policy have called louder for leaving to the jury a freer hand."
218); the control of "mixed questions of law and fact;" the control
of factual decisions by appellate courts. Thayer on Evidence (1898
ed.) p. 208
et seq.
[
Footnote 2/12]
Counsel seeking the directed verdict said:
"This prerogative of the court is never exercised but in cases
where the evidence is so indefinite and unsatisfactory that nothing
but wild, irrational conjecture or licentious speculation could
induce the jury to pronounce the verdict which is sought at their
hands."
Parks v. Ross, supra, at
52 U. S.
372.
[
Footnote 2/13]
See also Pleasants v.
Fant, 22 Wall. 116;
Oscanyan v. Arms Co.,
103 U. S. 261, and
Baylis v. Travelers' Insurance Co., 113 U.
S. 316. For an excellent discussion of the history of
the directed verdict,
see Hackett, Has a Trial Judge of a
United States Court the Right to Direct a Verdict?, 24 Yale L.J.
127.
[
Footnote 2/14]
Rule 50(b) of the Rules of Civil Procedure and
319
U.S. 372fn2/10|>note 10,
supra.
[
Footnote 2/15]
In the period of the Civil War, the formula changed slightly,
but its effect was the same -- if the evidence so much as "tended
to prove the position" of the party, the case was for the jury.
Drakely v.
Gregg, 8 Wall. 242,
75 U. S. 268;
Hickman v.
Jones, 9 Wall.197,
76 U. S. 201;
Barney v.
Schmeider, 9 Wall. 248,
76 U. S. 253.
Cf. 61 U. S.
Breitling, 20 How. 252;
Goodman v.
Simonds, 20 How. 343,
61 U. S.
359.
[
Footnote 2/16]
For examples of early respect for juries,
see Morton v.
Fairbanks, 11 Pick. 368;
Way v. Illinois Central R.
Co., 35 Iowa 585. For the development in Illinois,
see 8 Ill.L.Rev. 287, 481-486. For the Pennsylvania
development,
compare Fitzwater v. Stout, 16 Pa.St. 22,
and Thomas v. Thomas, 1 Pa. 315,
with Hyatt v.
Johnston, 91 Pa.St. 196, 200.
[
Footnote 2/17]
One additional device was the remittitur practice, which gives
the court a method of controlling jury findings as to damages.
Arkansas Valley Co. v. Mann, 130 U. S.
69.
[
Footnote 2/18]
In
Ewing' v.
Burnet, 11 Pet. 41,
36 U. S. 51, this
Court said:
"It was also their [the jury's] province to judge of the
credibility of the witnesses and the weight of their testimony as
tending, in a greater or less degree, to prove the facts relied on;
as these were matters with which the court could not interfere, the
plaintiff's right to the instruction asked must depend upon the
opinion of the court, on a finding by the jury in favour of the
defendant on every matter which the evidence conduced to prove;
giving full credence to the witnesses produced by him, and
discrediting the witness for the plaintiff."
[
Footnote 2/19]
Another phase of this same conflict arises in the use of
judicial power to punish for contempt of court without allowance of
jury trial. Nelles and King, Contempt by Publication, 28 Col.L.Rev.
400, 524, and, for a sharp indictment of the free use of contempt
jurisdiction as basically undemocratic, 553;
Nye v. United
States, 313 U. S. 33;
Bridges v. California, 314 U. S. 252.
[
Footnote 2/20]
Howe,
supra, 615, 616. Howe continues:
"What seems discreditable to the judiciary in the story which I
have related is the fierce resolution and deceptive ingenuity with
which the courts have refused to carry out the unqualified mandate
of statutes and constitutions. It is possible to feel that the
final solution of the problem has been wise without approving the
frequently arrogant methods which courts have used in reaching that
result."
[
Footnote 2/21]
This Court has said of one type of case in
Richmond &
Danville R. Co. v. Powers, 149 U. S. 43,
149 U. S.
45:
"It is well settled that, where there is uncertainty as to the
existence of either negligence or contributory negligence, the
question is not one of law, but of fact, and to be settled by a
jury, and this whether the uncertainty arises from a conflict in
the testimony or because, the facts being undisputed, fair-minded
men will honestly draw different conclusions from them."