65 F.2d 775 | 2d Cir. | 1933
This suit was commenced in May, 1929, to recover upon a policy of war risk insurance issued to the plaintiff during his enlistment in the United States Army. He enlisted in September, 1918, served in the Field Artillery at Camp Zachary Taylor, Ky., and was honorably discharged in January, 1919. He allowed his insurance to lapse with his discharge, but he contends that he became totally and permanently disabled while the pol-iey was still in force. This the defendant denied. The issue was submitted to a jury which, after twice reporting that it was unable to agree, finally brought in a verdict for the plaintiff. At 'the conclusion of the evidence the defendant moved for a directed verdict, and the principal question presented by this appeal is whether that motion should have been granted.
There is evidence from which the jury might well have found that, when the plain
To establish his right to recover, he must prove that he was totally and permanently disabled while his policy was in force. Granted that when discharged from the army he had a disease which was certain to incapacitate him in the future, partially at first and totally in time, such proof is insufficient. A condition of both total and permanent disability must exist before his policy lapsed. Eggen v. United States, 58 F.(2d) 616; 618 (C. C. A. 8); Nicolay v. United States, 51 F.(2d) 170, 172 (C. C. A. 10); United States v. McGrory, 63 F.(2d) 697, 698 (C. C. A. 1); United States v. Lumbra, 63 F.(2d) 796, 797 (C. C. A. 2). The matter chiefly in dispute is whether there was evidence from which the jury could properly find that the plaintiff was totally disabled in January, 19191. For the sixteen days immediately preceding his discharge he took part in target practice with his battery and was able to perform in his turn each assignment from gunner to battery commander, experiencing no trouble of any kind. His enlistment record reports his physical condition as good at the time of his discharge. He then returned to Columbia University to resume a course of premedieal studies. He apparently continued his studies for about a year and then withdrew. He testified that he was unable to keep up with his studies because he had difficulty with his legs. He “could stand on them but could not get around.” For a year and a half, from July, 1920, to January 31, 1922, he worked as a bookkeeper at the Chelsea Exchange Bank, receiving a salary of $75 per month. The testimony shows that, without detriment to his health, he was able to do work of this character, which permitted him to be seated most of the day. When Dr. Hammond first saw him in May, 1920, he was able to walk without using a cane, and the tremor in his right hand did not develop until more than a year thereafter. The plaintiff testified that after withdrawing from Columbia University he took an examination to teach music and held a position as a high school music teacher for a couple of years. The record does not clearly disclose the years during which he was able to do this work. He said he stopped teaching about 1925 or 1923; but probably he was confused as to the dates. He was “practically incapacitated” when Dr. Mc-Kendree saw him in 1925, and the defendant conceded that for purposes of awarding compensation he was considered totally disabled from 1924 on.
Upon this record we do not think the jury can be permitted to find that he was totally disabled in January, 1919. The regulations have defined total disability as “any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation.” By “continuously” is meant with reasonable regularity. While the difficulty with his legs developed shortly after his discharge, he was not obliged to use a cane until more than a year later, and he was able to work as a bookkeeper at least until January, 31, 1922. So far as appears, he lost no time whatever; that is, he pursued this work with reasonable regularity. Such work was not dangerous to his health and did not accelerate the progress of the disease. During this same period, or later, he also held a position as a high school music teacher. The gallant effort of this young man to continue as long
The other errors assigned by the appellant may be disposed of very briefly. Complaint is made that the plaintiff’s father was allowed to recite certain statements made by the plaintiff in the course of a short walk during which he stopped and leaned against a gate for support. They were challenged as hearsay. Some of the statements represented spontaneous expressions of mental or physical condition accompanying the occurrence, and so were within a recognized exception to the hearsay rule. See Proechel v. United States, 59 F.(2d) 648, 650 (C. C. A. 8); United States v. O’Brien, 51 F.(2d) 37, 41 (C. C. A. 4); Wigmore, Evidence (2d Ed.) §§ 1714-18. One or two appear to be narrative responses to the father’s questions. They might better have been excluded, but they added so little to the spontaneous exclamations that no prejudicial error is apparent. Nor do we see anything seriously prejudicial in the form of the charge respecting preponderance of the evidence and the finding of a verdict for the plaintiff even though the jury entertained considerable doubt. But for the error first discussed the judgment must be reversed and the cause remanded for a new trial. -