53 F.2d 565 | 5th Cir. | 1931
Tliis was an action, instituted in 1930, on a war risk policy or certificate, issued during the World War to Miss Elizabeth White, an army nurse, who died on March 17, 1920. The petition alleged that premiums on said insurance contract were deducted from the insured’s army pay until the time of her discharge from the Army on or about April 19, 1919, the payment of no further premiums being alleged, and that the insured was totally and permanently disabled from on and before that date until the time of her death. The only issue of fact raised was as to whether the insured did or did not become totally and permanently disabled while the policy was in force. The evidence bearing on that issue consisted of the testimony of two physicians, two sisters of the insured, and Mrs. Mabel II. Ashley, witnesses introduced by the plaintiffs, and the testimony of Dr. Sydenstricker, a witness introduced by the defendant. Upon the conclusion of the evidence, the court granted a motion for a directed verdict in favor of the defendant.
Evidence without conflict showed the following: Before the insured went into the Army as a nurse; she was not a very robust woman, but she carried on her work as a nurse in Augusta, Ga., where she was for some time before the war. She was a very great favorite with the doctors and veiy much beloved by her patients, having an extensive
The above-mentioned instruction was not erroneous if there was no evidence having a substantial tendency to prove that while the policy was in force the insured became totally and permanently disabled, which means, not incapacity to do any work at all, but such impairment of capacity as renders it impossible for the disabled person to follow continuously any substantially gainful occupation. United States v. McPhee (C. C. A.) 31 F.(2d) 243; Blair v. United States (C. C. A.) 47 F.(2d) 109. One’s disability is not kept from being total by reason of the fact that it is physically possible for him to do some gainful work at times, if his doing so involves a risk of seriously impairing his health or aggravating an ailment from which he suffers. United States v. Acker (C. C. A.) 35 F.(2d) 646. Within the meaning of the word “continuously,” as used in the above-stated definition, one properly may be regarded as able to follow continuously a substantially gainful occupation, though at times, by reason of fatigue due to prolonged exertion, or temporary illness, he is unable to work in Ms occupation. Interruptions of one’s work due to an attack of influenza, to an intestinal disturbance, or a gall bladder trouble, to the removal of Ms tonsils, or any temporarily disabling cause, may be consistent with what is meant by ability to follow continuously a gainful occupation. During a given time a woman nurse, within the meaning of the stated definition, may be able to follow continuously some substantially gainful occupation, though during parts of that time she was unable to work, immediately following the termination of her services as an army nurse, or during or soon after an attack of influenza, a bowel trouble, or other temporarily disabling ailment. Ford v. United States (C. C. A.) 44 F.(2d) 754; Carter v. United States (C. C. A.) 49 F.(2d) 223.
Nothing in the record indicates that prior to nearly ten years after the insured’s death the idea that the insured became totally and permanently disabled while tire insurance was in force occurred to any one. A finding that while the policy was in force she had the totally disabling disease from which she died would be a mere guess or conjecture, unsupported by any evidence tending to prove that such was a fact. Such a finding could not properly be based on tho circumstance that, before the existence of the disease was discovered, her condition shown by evidence was consistent with the possibility that she then had that disease. The burden was on the appellants to prove that tho insured became totally and permanently disabled while the policy was in force. The evidence showed that the insured worked as a private nurse during a considerable period beginning about June 1, 1919. If during that time, when there was an unusual scarcity of nurses, there frequently was available to an experienced nurse, never robust, who was a great favorite with the doctors of the community in which she practiced, substantially remunerative nursing tasks of a kind which such a nurse was able, except when disabled by temporary illness, or by fatigue duo to prolonged nursing, to perform without risking a serious impairment or deterioration of her health, it cannot properly be said that it was impossible for such a nurse so situated to follow continuously any substantially gainful occupation. Tho only evidence as to the nursing cases undertaken by the insured after she resumed nursing on or about June 1, 1919, showed that she completed those tasks, and there was no indication that her work as a nurso was subject to criticism. There was no evidence furnishing a support for a finding that, during tho time the insured actually
The judgment is affirmed.