Appeal from the District Court of the United States for the District of New Jersey; John Boyd Avis, Judge.
Before WOOLLEY, Davis and THOMPSON, Circuit Judges.
Meyer, a soldier, took out a policy of war risk insurance for $10,000 which lapsed in 1918 upon his discharge from the army. On October 1, 1925, the veteran applied for and obtained reinstatement of his policy in the amount of $5000 on a showing satisfactory to the government that, though in ill health, he was not suffering from total permanent disability. He converted the policy from term insurance to endowment insurance, paid back premiums of $307.65 as required in such case and thereafter paid current premiums until the summer of 1929 when through force of circumstances, he let the policy lapse. In June 1932, he made application to the United States through the Veterans Bureau for payment of benefits because of claimed total permanent disability occurring while the policy was in force during a period "ever since November 1, 1925." When the government refused payment, the veteran brought this suit and had a verdict.From the judgment that followed, the government appealed on grounds which will appear in the discussion.
The court, charging the words of the policy, "Upon due proof of the total permanent disability of the insured while this policy is in force, monthly installments shall * * * be payable to the insured * * *," submitted two questions to the jury which, for the plaintiff to recover, it was required to decide in the affirmative. They were:
"First, that the plaintiff (the insured) was totally and permanently disabled sometime during the period between October 1, 1925, and August 1929;" and second, "That his disability is the result of injury or disease or of the aggravation thereof suffered or contracted in active military or naval service during the World War."
There was evidence that the plaintiff was in ill health when he was discharged from the army and when the original policy lapsed, and also when it was reinstated "without medical examination," as provided by statute. Section 400, Act Oct. 6, 1917, 40 Stat. 409. The Act of June 7, 1924, 43 Stat. 607, amended by Act March 28, 1934, 48 Stat. 524, at least with respect to original policies, presumes a service connection between ill health when in the service and later disability. However, with respect to the reinstated policy here in suit there was evidence of war connected disability of the veteran sufficient to sustain the verdict on the second question submitted.
The real controversy arose on the first question, whether, during the life of the reinstated policy, the plaintiff was totally and permanently disabled, which was contested by the government on the premise that he must prove that total permanent disability occurred after the reinstatement of the policy, and on the contention that he offered no such proof; indeed, that by his own testimony he proved the contrary, and that in consequence the court erred in refusing its motions to dismiss the complaint and for a directed verdict in its favor.
The government, in support of its position, relies chiefly on affirmative answers made by the plaintiff to questions asked him on cross-examination, whether "when (he) took this policy in 1925, (he was) in the same physical condition as (he is) now," and whether the condition of his right arm was the same "today as then." The government insists that, upon the logic of the answers, similarity of disability before and after the reinstatement of the policy precludes recovery in any event, for if his disability, confessedly permanent, was total before as well as after the reinstatement, the policy is void as to disability benefits, and if partial after reinstatement as before it is not covered by the policy. If that were all there was in the case we think the government's contention arguendo should prevail.But there was more. It was this:
The plaintiff developed incipient ear trouble when in the service, a symptom of the disease later diagnosed. In 1921 his ear trouble became more pronounced and a partial paralysis of his right arm and leg developed. From symptoms then prevailing, a physician, having the plaintiff under daily observation from September 1921 to June 1922, made a final diagnosis of anatricrotic lateral sclerosis which is a neurological disease involving the central nervous system, characterized by progressive degeneration of the tracts that carry impulses to and from the brain, and deterioration of the cells that originate the impulses. The disease is progressive in that the conditions are certain slowly to grow worse.
When in this state the government sent the plaintiff to the University of Pennsylvania for vocational training. There he studied and in June 1926, was awarded a diploma in a course of accounting. Manifestly his disability at that time though permanent was not total.Just when, in a slowly progressive disease of this character, it became total and would be difficult to determine within a brief period. Only a jury could say when it occurred. Anyway, while attending the University his policy of insurance was reinstated and during that time and thereafter during the period of the reinstated policy his partially paralyzed right side, lame right leg and palsied right arm very slowly became worse, making writing physically difficult and vocationally impossible. The strength of his right arm decreased, his limp remained, his hair turned grey, and his hearing became more impaired. In that condition he found it impossible to obtain a position as an accountant, or any other employment that reequired writing or physical activity. He tried raising chickens for a time but that failed because he had to hire men to do his work.
In 1932 a physician in the government service, testifying for the government, examined the plaintiff and diagnosed his case as hysterical hemiplegia or paralysis, which indicates damage to the central nervous system.
The plaintiff's physician examined him again in 1933 and found the same symptoms and additional ones as a progressive development of the original condition, resulting in an advanced stage of multiple sclerosis, which means hardening in the multiple areas throughout the central nervous system, verifying his original diagnosis. He further testified that the plaintiff then suffered from total permanent disability and that in his opinion he was unable to follow a substantially gainful occupation and that the condition was certain to continue. The government's physician was not allowed to give his opinion on this point but indicated, in occurrence with the plaintiff's physician, that the plaintiff might do some work that did not require the use of his right arm, such as tending a counter in a candy store, running a little news stand, going from door to door selling small objects. On testimony of this character we think the jury could validly find total permanent disability occurring after the reinstatement of the policy and while it was in full force, notwithstanding the plaintiff's answers to the two quoted questions, the purport and probative effect of which were for the jury to decide.
Accordingly we should affirm the judgment except for a matter which has arisen since the ...