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June 11, 1952


The opinion of the court was delivered by: WATSON

This is an action by the beneficiary of a life insurance policy issued by the Government under the National Service Life Insurance Act of 1940, as amended, 38 U.S.C.A. 801 et seq. The only issue in the case was whether or not the insured was permanently and totally disabled for purpose of waiver of premiums. The case was tried twice; in the first trial the jury disagreed; in the second trial the jury found for the plaintiff. At the second trial, defendant filed a motions to dismiss at the close of plaintiff's case, and a motion for a directed verdict at the close of defendant's case, both of which motions were denied. Defendant now moves to set aside the verdict and enter judgment for defendant on the ground that there was no proof that the insured was totally disabled under the provisions of the National Service Life Insurance Act, and in the alternative for a new trial on the ground that the verdict is against the weight of the evidence.

Many of the facts and the issue in the case were stipulated by the parties. Evidence as to other facts was introduced at the trial of the case by way of lay and expert witnesses and also by exhibits, all of which the Court must view in a light most favorable to the plaintiff, including every reasonable inference fairly deducible therefrom. Masterson v. Pennsylvania R. Co., 3 Cir., 1950, 182 F.2d 793; United States v. Calvey, 3 Cir., 1940, 110 F.2d 327.

 The defendant admits that the insured was permanently and totally disabled from January 11, 1944, which was approximately five months prior to his discharge from the Army, to July 27, 1944, when the insured secured a job with the Murray Corporation of America as a General Production Assembler. The insured worked at this job until March 31, 1945. The defendant admits that the insured was once again permanently and totally disabled from March 31, 1945, when he quit the job, until the insured committed suicide on May 21, 1946. The government contends that, during the eight months interim when insured was employed, the insured's work record was such as to conclusively negative a finding that plaintiff was permanently and totally disabled. It is therefore necessary to determine whether there was sufficient evidence to submit the case to the jury, and further whether the evidence was sufficient to support the jury's verdict that the insured was permanently and totally disabled for the period during which the insured was employed.

 When the insured went to the Murray Plant for employment he was given a personality test, an intelligence test and a mechanical aptitude test. Having received a favorable score in these tests, he was given a final interview with Mr. Davis,one of the final interviewers of hourly personnel, which interview took a maximum of 10 minutes. Mr. Davis said he appeared to be a normal, healthy, young man. He was then sent to a medical examiner, Dr. Kempter, for a physical examination, which took about 20 minutes. Dr. Kempter diagnosed the insured as being a psychoneurotic and gave the insured an X-3 classification, which was next to the lowest of four classifications (X-1 to X-4) given at the Murray Plant. Had the insured received the lowest classification, X-4, he would not have been hired. Dr. Kempter testified that he did not believe that the insured was suffering from dementia praecox at the time he examined him, because he would have referred him to a psychiatrist had he thought so.

 The insured was first assigned to the training school for assemblers, where he spent two weeks and received 70 cents an hour. He was then assigned to the assembly line where his duties were to drill holes in airplane wings and to buck rivets; he now received 80 cents an hour. The insured was employed for a period of approximately eight months, during which time he earned $ 1367.25. He was absent from work for about three weeks in December, 1944 and January, 1945, during which period the Murray Plant received a medical report from the insured's family physician, dated December 28, 1944. Some of the remarks appearing on the physician's report were as follows:

 'Symptoms: Extreme nervousness, trembling, sits and looks into space; will not answer questions readily. Loss of appetite.'

 'Your exact diagnosis: Psychoneurosis; Malaria.'

 At the trial the family physician stated his diagnosis as to malaria was incorrect.

 Henry Butcher was the insured's group leader during his employment period, and testified that the insured would not do his work when instructed to do so, he would do the work improperly, stray from his work, eat lunch by himself under one of the assembly jigs and talk and laugh to himself. He reported these matters to his superiors and made a request for insured's transfer as he felt the insured was a bad influence on the job. Butcher did not request this transfer in writing as required by plant procedure.

 The Murray Company personnel records, which were offered in evidence by the defendant, corroborated to some extent the testimony given by Butcher, the group leader. What is apparently a report made by Butcher reads as follows:

 'Couldn't seem to stay at his work. Would go and lay down. Would fall asleep. Memory very bad. Very afraid of bosses. Stuttering quite a bit. Lost time. Came back and went off on H.C. again. When lunch time came he would go off by himself and usually come back later.'

 This same report bears another notation, apparently made by a William Bowman, which reads as follows:

 'Odd- Talked to self. Used to walk away from job. Very foggy. Funny smile on his face.'

 It was the procedure in the Murray Plant to increase a worker's pay after a certain period of time, provided the group leader and supervisor indicated their approval. In an effort to show that the insured was performing his work satisfactorily, the government showed that the insured's hourly rate of pay was increased from 80 ...

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