Appeal from the District Court of the United States for the Southern District of Indiana, Terre Haute Division.
Before EVANS, SPARKS, and FITZHENRY, Circuit Judges.
FITZHENRY, Circuit Judge.
This is an appeal from a judgment of the District Court for the Southern District of Indiana in favor of the appellees (plaintiffs below), upon a war risk insurance contract.
The insured, Hobart McKinley Harrison, enlisted in the United States Army on October 3, 1917, and was honorably discharged December 17, 1918. While he was in the service an application for insurance, dated January 17, 1918, was made and war risk term insurance in the sum of $10,000 granted to him; Louetta Harrison, his mother, was named as beneficiary.
It is claimed that the contract matured by reason of the insured having become totally and permanently disabled December 17, 1918, when discharged from military service.
Trial by jury was waived and the cause heard by the court. At the conclusion of plaintiffs' testimony, the court denied the government's motion for judgment in its favor on the ground that there was no substantial evidence in the record to show insured was totally and permanently disabled at any time while his policy of insurance was in force. Upon a full hearing the court found the issues for the plaintiffs and entered judgment accordingly.
It was incumbent upon appellees in the District Court to show that the insured was both totally and permanently disabled on or before January 31, 1919. United States v. Crain (C.C.A.) 63 F.2d 528; Eggen v. United States (C.C.A.) 58 F.2d 616; Nalbantian v. United States (C.C.A.) 54 F.2d 63.
While insured was at Camp Zachary Taylor, Ky., he was admitted to the base hospital on October 7, 1918, and was discharged and returned to duty, October 15, 1918. The record of final diagnosis made by the army surgeon was: "Observation, influenza not found." During this period the insured had a temperature above normal from October 8th to October 11th and was given as treatment, rest, light diet, and cathartic. At the time of his discharge from the service, December 17, 1918, the insured certified that "at the present time I have no wound, injury or disease incurred in the military service or otherwise," and the examining surgeon certified that the insured had been given a careful physical examination and was found to be physically and mentally sound.
To sustain the burden cast upon appellees it was shown that the insured returned to his home at Rockville, Ind., and in January went to Wabash College, where he remained for two or three months. He was nervous and not as rugged when he returned home as when he enlisted.
July 10, 1920, insured filed claim for compensation, in which, in answer to question 11: "Nature and extent of disability claimed," he stated, "Bad teeth," and in answer to the question, "Cause of disability," he stated "Neglect in the military service." In answer to the question, "Occupations since discharge, dates of each, and wages received? If less than before, why?" the insured stated, "Machinist (occupation) -- Ja. 12, 1920 (commencing date) -- Still there (ending date) -- $125 (monthly wage)"; (present employer) "Nordyke & Mormon Co."
A general physical examination of the insured was made on July 10, 1920, in connection with his application for dental work to be performed at government expense by Dr. Joseph R. Bloomer. The doctor stated that insured asked for no compensation, but for dental work; that insured gave Dr. Bloomer a history of having had influenza in October, 1918; having been turned down for a commission November 7, 1918, on account of high blood pressure. On being reexamined he was passed for commission November 10, 1918; that he had a headache occasionally in the back of his head; that he had to quit work for one day; that the insured's teeth were in bad repair; that the insured had been constipated and had a coated tongue; that his blood pressure was normal, urine acid, no albumin, no sugar, pulse normal, heart negative, lungs negative, no disease found; prognosis good; that he was then of the opinion the insured was able to perform his prewar occupation; that examination by the stethoscope did not reveal any heart murmer or leaky valve. Upon the trial the doctor, however, testified that he did not think he gave the insured a very thorough examination July 10, 1920; that the insured's appearance was good July 10, 1920, and remained good until his death; that he had not noticeably lost any weight, made no complaint, never said much about his condition, but did not seem to have much pep.
Later, the insured made application for compensation and found that the physician's examination of July 10, 1920, was standing against him. On July 1, 1927, insured made application for yearly renewable term insurance, in which he said that he had not been ill or contracted any disease or suffered any injury or been prevented by any ill health from attending his usual occupation or consulted a physician regarding his health since lapse of his insurance. This application also showed that the same Dr. Bloomer had examined the insured and stated that he found no abnormality of the heart, no irregular pulse or other defect. In Dr. Bloomer's opinion at that time, July 7, 1927, insured was acceptable as an insurance risk.
The evidence discloses that immediately after returning from the service, insured went to Wabash College for two or three months, then quit because of his nervous condition; that he rested at home in the summer and fall and returned to his usual occupation, January 12, 1920, and was still at work there at the time of making his application for dental service at government expense, July 10, 1920, although his mother said that he only worked for Nordyke & Mormon Company for about a week and then had to quit and come home, which statement was contradicted by other witnesses. After leaving Wabash College, he worked for one Stark at different times, selling automobiles; ...