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June 19, 1940


The opinion of the court was delivered by: MCVICAR

This is an action by Stanley Johnson Zufall against the United States to recover insurance for total and permanent disability as provided for in an insurance policy issued by the defendant to him.

The case was tried in November, 1936. At the conclusion of the evidence, defendant submitted a request that the court direct a verdict in its favor. This request was reserved. The jury returned a verdict in favor of the plaintiff for $6,957.50. Defendant filed motions for a new trial and for judgment non obstante veredicto. These motions and the reserved question of law were argued June 11, 1940. The only question argued was whether the court, as a matter of law, should have directed the jury to find a verdict in favor of the defendant, on the ground that there was no substantial evidence that he was totally and permanently disabled on or prior to October 18, 1928.

 The applicable rule is set forth in Gunning v. Cooley, 281 U.S. 90, 94, 50 S. Ct. 231, 233, 74 L. Ed. 720 (which case has been cited often), as follows:

 "A mere scintilla of evidence is not enough to require the submission of an issue to the jury. The decisions establish a more reasonable rule 'that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.' * * *

 The plaintiff entered the military service of the United States October 11, 1917. On February 1, 1918, there was issued to him a ten thousand ($10,000) dollar policy of war risk insurance, covering total and permanent disability. He was discharged from the Army August 6, 1919. He continued to pay the premiums on his war risk insurance policy until December 1, 1924, when his policy was converted into a twenty year endowment policy, covering total and permanent disability. This policy, by virtue of the premiums paid, remained in force until October 18, 1928. On March 19, 1934, plaintiff filed a claim with the defendant for total and permanent disability benefits. This claim was refused July 23, 1935, after which he brought the present action.

 Plaintiff was in good health when he enlisted. During his military service he had two attacks of influenza. He suffered extreme nervousness arising from heavy artillery fire over a period of ninety days, intermittently. From July to December, 1919, he was troubled with an abscessed tooth. He suffered, also, while in the service from exposure to cold and rain and from falling over a bank.

 After discharge from the Army, he lived with his sister in Pittsburgh, and while there, he suffered some from his tooth; he was dizzy, weak in the legs and his left foot dragged, due to lack of muscular control; he also had bleeding from the nose.

 From September, 1919 to May, 1926, he was employed by the West Penn Power Company, first as a laborer, and afterwards as a foreman of construction, doing supervisory work. He drove a car. During this period, he lost considerable time, as much as two days a week, by reason of his back, nervousness, nose bleeding, loss of sleep and dizziness. While he was a foreman, he was not required to do much physical labor. He suffered from headaches, dizziness, shortness of breath, pains in his leg, back and hemorrhages, and was required to rest three or four times per day. From 1926 to January, 1927, he worked for the Duquesne Light Company, having supervision of a line gang; he worked all of this period excepting about ten days. From June 1, 1927 to May, 1928, he worked for the United Gas Improvement Company as a foreman. From May, 1928 to August, 1928, he worked for M.J. Daley & Company pany as an assistant foreman. From September, 1928 to April, 1932, he worked for the New York Central Railroad Company as a telegrapher. Starting in May, 1932, he worked about two months for the American-France Steamship Company as a wiper. He was paid by the New York Central Railroad for his service in 1929, $1,757.07; in 1930, $1,620.17; in 1931, $1,249.64; in 1932, $16.28 -- a total of $4,643.16. He has not done any work since his employment with American-France Steamship Company in 1932, on account of being unable to work.

 During all of the employment, aforesaid, he had illness. He consulted physicians and was advised by them to go to a hospital.

 From September, 1926 to March, 1927, he was under the care and treatment of Dr. Joseph C. Edgar.Dr. Edgar diagnosed his principal trouble during his treatment as a serious affection of the heart, accompanied with a high blood pressure. He testified that plaintiff, by reason thereof, was incapacitated for work; that it could not be told when plaintiff might fall over and have a cerebral hemorrhage. During his treatment, the doctor thought he probably might improve, but he did not, and he testified, positively, that from his examination and treatments in 1926 and 1927, he was of the opinion that his then total disability to work would continue until he died. He also testified that the plaintiff's work record did not affect his opinion as to his total disability to work.

 In Lumbra v. United States, 290 U.S. 551, 560, 54 S. Ct. 272, 276, 78 L. Ed. 492, the Supreme Court, speaking by Mr. Justice Butler, said: "The mere fact that one has done some work after the lapse of his policy is not of itself sufficient to defeat his claim of total permanent disability. He may have worked when really unable and at the risk of endangering his health or life." See United States v. Spaulding, 293 U.S. 498, 504, 55 S. Ct. 273, 79 L. Ed. 617.

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