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Denny v. United States.

April 1, 1939


Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Charles Edgar Woodward, Judge.

Author: Sparks

Before EVANS, SPARKS, and MAJOR, Circuit Judges.

SPARKS, Circuit Judge.

This is an appeal from a judgment on a directed verdict in favor of the Government. Appellant was a world was veteran, and his action arose out of the denial of his claim for permanent total disability benefits. This claim was made under his contract of war risk term insurance which was in force from February 1, 1918, to December 1, 1918, and from March 1, 1919, to December 31, 1920. His claim was also based upon a twenty-year endowment policy of United States Government Life (converted) insurance which was in force through premium payments from January 1, 1921, to February 28, 1923; from May 1, 1923, to February 28, 1925; and from July 1, 1926, to August 31, 1926. On November 22, 1926, appellant surrendered the endowment policy for its cash value of $2,221.01. At that time the policy was subject to a loan lien of $2,046, and upon the surrender of the policy to the Government it paid him $175.01.

Appellant's claim for permanent total disability benefits was filed October 28, 1930. It was denied by the Veterans' Administration on September 16, 1936, and this action was instituted September 26, 1936. The claim alleged that he became permanently totally disabled on October 1, 1918, or on December 25, 1924, as a result of the following ailments: General tremor, chronic, progressive; psychoneurosis; neurasthenia; hysteria; effects of pneumonia; nervousness; general weakness; general disability and other ailments, the exact nature of which was unknown to appellant. The record discloses that appellant since childhood had been affected with crossed-eyes, had a deformity of the left arm, had been nervous, and was handicapped by congenital mental deficiency. He had a large and peculiarly shaped head, and a mask-like expression. Although not naturally seclusive, he had not been able to make friends or mix with those with whom he came in contact. He attended high school and college but failed to complete his work in either.

Appellant's testimony discloses that his father owned a farm of 2,000 acres in Iowa; that prior to his enlistment appellant weighed crops on this farm and saw that they were paid for by the elevators; that he did nothing of much consequence on the farm after his father's death in 1915, but he did as much as he could.

Appellant enlisted in a hospital detachment of the army at Camp Dodge, Iowa, on December 14, 1917, at which time he was thirty-one years of age. He was assigned to limited service as a mail orderly at Camp Upton, New York. During his ten months' army service, he spent a total of four months in the hospital. During six weeks of this time he was treated for lobar pneumonia. During the remainder of his hospitalization he was observed with respect to his mental and neurological condition which was variously diagnosed as general tremor, constitutional psychopathic state, inadequate personality, mental deficiency (moron), and constitutional inferiority, all of which were found to have existed prior to his enlistment.

He was discharged October 7, 1918, and his certificate of disability, of the same date, disclosed that his occupation was farming; that he was recommended for discharge on account of general tremor, chronic, progressive; that he became unfit for duty from his then present disease which had existed for more than three years previously, and prior to his entrance into military service.It further stated that his disability was not incurred in the line of his military duty.

Following his discharge from service he worked for a short time at the Rock Island Arsenal from which employment he was discharged after a handtruck which he was operating damaged a time clock. He then returned to Burlington, Iowa, thereafter working at various odd jobs for indefinite periods of time, at a number of places from Indiana to the Pacific coast. These jobs included farm work, yard and garden work, logging, dishwashing, freight handling, railroad track work, cemetery attendant, and soliciting funds for a charitable organization in Chicago. This work continued intermittently until in the year 1930. Since then he has done no work, and he quit no job voluntarily. In explaining his delay in filing his claim for disability compensation until 1930, he said: "The reason I didn't apply for it before was nt because I didn't need it." He was paid retroactive compensation in the amount of $1,245 in 1931, and thereafter until June, 1935, he received amounts varying from $25 to $100 a month.

Appellant's witness, Anderson, testified that he had known him in Iowa but that he had not seen him from 1912 to 1925. Since 1925 he had seen him at least once a month and perhaps more frequently, at which times he appeared to be nervous, had a shaky walk, and when he exerted himself he tired easily; that he had never seen him work since the war. He helped support him during 1927, 1928, 1929 and 1930, by giving him meal tickets and money which aggregated $400.

The record discloses that appellant was neither examined nor treated by a physician from the time of his discharge in 1918 until after he had applied for compensation in 1930. He was examined April 8, 1930, at Hines Hospital in Illinois, where he was given a diagnosis of psychoneurosis neurasthenia, and hospitalization was recommended. On April 9, 1930, he was admitted to the Great Lakes Naval Hospital, from which he was discharged August 29, 1930. The examination there disclosed that he had no tremors of consequence. The mental examination was as follows:

"Expression - suspicious, on entering examining room. Well oriented, in all spheres. Memory, poor, for remote events, however, patient is not willing to talk much, because he has a lawsuit pending with relatives. Attention, easily gained and held. Judgment, fair. Denies hallucinations, delusions, compulsions and phobias. Mental age, below average for one of his education. Emotional reaction, fairly stable. Mental attitude and mannerisms: Is rather hostile when questions are asked about his family and personal affairs. Reaction to educational tests, fair. Social Reaction: Not married because of financial reasons. Has been working as a collector, for a missionary organization. Was to receive between fifty and one hundred thousand dollars from father's estate, but brother and sister, in conjunction with another man, have beat him out of it. At present time has a lawsuit pending. After considerable conversation with patient, he suddenly becomes very confidential, and loses the suspicion and antagonism shown at outset of examination. Patient badly in need of bath; is untidy, in dress and habits. Linen, badly soiled."

The final diagnosis was "psychoneurosis, neurasthenia, moderate, not permanent - treated, improved." He was recommended for discharge as having reached ...

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