Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Charles E. Woodward, Judge.
Before SPARKS, MAJOR, and KERNER, Circuit Judges.
This is an appeal from a judgment in favor of the defendant, based upon the verdict of a jury directed by the court at the conclusion of the plaintiff's case. Plaintiff assigns as error the action of the court in directing a verdict and argues that there was substantial evidence which required the submission of the case to a jury. Defendant raises a question of jurisdiction.
The suit was brought to recover total permanent disability benefits under a contract of War Risk Term Insurance in the sum of $10,000, effective June 9, 1918, and which lapsed for non-payment of premium August 31, 1919, unless the plaintiff became permanently and totally disabled on or prior thereto.
Plaintiff enlisted in the United States Army on June 5, 1918, and was discharged on July 22, 1919. The claim sued on was filed in the Veterans' Administration by plaintiff himself on July 3, 1931, and plaintiff was notified of final denial thereof Janluary 14, 1933. The suit was instituted on December 31, 1935. The answer joined issue on the alleged occurrences of total permanent disability during the life of the policy, and prayed dismissal of the suit for lack of jurisdiction on the ground that it has not been brought within the time permitted by law. It appears the court below made no express finding upon the jurisdictional question, but we assume the court was of the opinion it had jurisdiction, otherwise there would have been no occasion for it to have directed a verdict for want of substantial evidence.
Plaintiff offered and relies upon the testimony of lay witnesses as to his physical and mental condition both prior and subsequent to the time of his discharge from military service. This testimony is to the effect that plaintiff, at the time of his entry into the service, was in good health and that he was an active participant in athletics. While in Russia, he fell into the icy waters of a river and was sent to a convalescent camp; that his attitude and condition thereafter changed, and instead of being good natured and full of vitality, he, as described by one witness "crawled into his shell" and would go around with his head down and avoided meeting people. Prior to his entry into the service, plaintiff was a barber by trade and rendered satisfactory services as such. There is also testimony to the effect hat after his return from the war, his services as a barber were unsatisfactory; that he appeared to be nervous and depressed, and would participate in arguments with customers to the extent that his services were no longer desirable. There is also testimony that he would get excited, laugh and cry without apparent reason, and that it took him twice as long to do a job as formerly. Plaintiff offered in evidence certain exhibits produced from the Government's records, summarized in plaintiff's brief as follows:
February 17, 1922 - (Dr. A. E. La Bine) Diagnosis: Psycho-nervous hysteria.
June 30, 1923 - (Dr. J. G. Carr) Diagnosis: Hysteria traumatic.
December 23, 1926 - (Examiner F. C. Walsh) General diagnosis: Dementia praecox, Simple type, with marked social inadjustment.
February 26, 1931 - (Dr. F. J. Griffin) Diagnosis: Constitutional psychopathic inferiority.
December 11, 1931 - (Drs. M. Koenig, E. F. Bogan and E. A. Gunderson) Diagnoisis: Constitutional psychopathic inferiority.
June 21, 1932 - (Dr. J. J. Thompson) Diagnosis: Constitutional psychopathic inferiority, non-service connected, could not be established from my examination.
August 12, 1932 - (Dr. J. J. Thompson) Summary: - From the complaints and reaction of the patient during the examination, which are evidently of a neurotic ...