Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; J. LeRoy Adair, Judge.
Before EVANS, MAJOR, and KERNER, Circuit Judges.
This is an appeal from a judgment, entered April 3, 1941, upon a jury verdict in favor of the Government, in a suit to recover continuing payments of total permanent disability benefits under a contract of war risk insurance.
Plaintiff, on July 9, 1928, in the District Court for the Western District of Washington, recovered a judgment for all accrued benefits under said contract upon a finding that he was totally and permanently disabled from November 23, 1918, to the date of the judgment. (This will hereafter be referred to as the "original case".) This judgment was satisfied and monthly payments were made by the Government to and including July, 1933, when they were discontinued upon a determination by the Veterans' Administration that plaintiff had recovered the ability to follow continuously a substantially gainful occupation.
Upon disagreement with the Veterans' Administration as to such determination, plaintiff brought suit to recover unpaid disability benefits from and after July 23, 1933. On the issue thus presented, after trial to a jury, judgment was entered in favor of the Government. Upon appeal, this court reversed the judgment. Countee v. United States, 7 Cir., 112 F.2d 447.
Again the case was tried to a jury, which resulted in a judgment favorable to the Government, from whence comes the appeal in the instant case.
The sole error relied upon for reversal is the court's refusal to direct a verdict in favor of the plaintiff or, in the alternative, the court's failure to set aside the verdict and enter judgment for the plaintiff. The essential question presented is the character of proof required to maintain the Government's side of the controversy. Plaintiff states his position in various ways, but we think it may be summarized by the following statement found in his brief: "As there was no evidence to show what ailment of the plaintiff, or what degree thereof, the jury at the trial of said former suit found and determined constituted plaintiff's total permanent disability, there was no evidence sufficient in law to show a recovery or plaintiff from the total permanent disability established by the judgment rendered in said first suit, and in the absence of a showing as to what the jury in said first suit found or determined as to said ailment and degree thereof, evidence at the last trial of the present suit that the plaintiff's condition is no longer totally and permanently disabling is incompetent, for the judgment in the said former suit may have been based on a determination that the very same condition, both as to its existence and degree, was totally and permanently disabling, and the effect of the evidence introduced in the last trial of the present suit would be merely to seek a retrial of an issue conclusively determined in said former suit."
The Government takes issue with this contention and argues that it was only necessary to prove that plaintiff had recovered from the total and permanent disability found by the jury in 1928, to the extent that he was possessed of the ability to follow continuously a substantially gainful occupation. The further question is presented as to which of the parties was required to carry the burden of proof, each contending that it was upon the other.
Plaintiff relies upon our former decision in support of his position and as the law of the case. The Government argues our decision has been misinterpreted by the plaintiff, but if not, it is erroneous; that it should be reexamined and modified or repudiated. In part, at least, both parties are correct. There seems to be no escape from the conclusion that plaintiff is correct in the interpretation of that portion of our former opinion which discusses the character and nature of the proof required to support the Administrator's determination that an insured has recovered to the extent of requiring a discontinuance of disability payments. An application of the principle formerly announced in this respect would seem to require a reversal.
On the other hand, a careful study of the situation has forced us to the conclusion that our former opinion was erroneous and it must be modified. We reluctantly reach such conclusion, not because of a hesitancy to acknowledge an error, but because of the trouble and expense resulting to the parties by reason of our erroneous pronouncement. The fallacy of plaintiff's contention, as well as our previous holding, is attributable to a misconception of the real issue presented and decided at the original trial, which was plaintiff's total and permanent disability at and during the period claimed. The sole issue presented in the instant case was whether plaintiff had recovered the ability to continuously follow a substantially gainful occupation. In neither case was there an issue presented or decided, as argued by the plaintiff and as was apparently held in our former decision, as to the particular disease or ailment upon which the ultimate issue was determined. Proof as to such diseases or ailments was merely evidentiary to the ultimate issue of the case.
Plaintiff's petition in the original case alleged total permanent disability resulting from heart trouble, general weakness, general disability and various other ailments of a nature to the plaintiff unknown. In the instant case there was medical testimony that the plaintiff was suffering from a heart ailment and nervous condition which would not prevent him from continuously following a gainful occupation. Plaintiff contends the Government was obligated to prove the specific ailment found by the jury in the original trial responsible for his condition and that he had recovered therefrom. As pointed out by the Government, this would be impossible because no such issue was then presented or decided. In attempting to comply with our former opinion, the Government introduced a transcript of the evidence taken at the original trial. There is no occasion for us to examine it in detail.It is sufficient to state that the testimony as to plaintiff's physical condition was seriously controverted, both by medical and lay witnesses. It must be assumed that all the evidence was considered by the jury in reaching its verdict. The evidence as to heart ailment could have been an insignificant factor in its verdict. It could have been, as is oftentimes the case, that the testimony of lay witnesses was the predominating factor. It is entirely possible that the jury had no conviction - it was not necessary that it should have - as to the precise cause of his total and permanent disability.
Assuming the false premise that the judgment in the first case was predicated upon a finding that plaintiff's heart ailment was the cause of his physical condition, he argues such issue can not be relitigated in the instant case. While not expressly so claiming, the doctrine sought to be invoked amounts to that of res adjudicata. As already pointed out, however, this contention ignores the issue originally determined and that presented in the instant case.
It must not be overlooked that the issue of total and permanent disability must be considered in its statutory rather than literal meaning. As to the physical condition of the plaintiff prior to the judgment in the original case, it would seem that the finding is res adjudicata. As to the future, however, it is only a determination of reasonable certainty that the condition will continue throughout life. Furthermore, any doubt that such decision is not decisive as to the future is dispelled by the Regulations and Procedure, U.S. Veterans' Bureau, page 9, issued March 9, 1918, which provides that subsequent to an award of total and permanent disability, the payment of installments shall be discontinued forthwith whenever the insured has recovered the ability to continuously follow any substantially gainful occupation. In addition to this, the contract of insurance itself provides for the payment of such benefits "during such disability." Thus, by statute, as well as by the terms of the contract, the issue determined in the original case in so far as it concerned the future, ...