Opinion — Lumbra v. United States

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SUPREME COURT oF THE UNITED STATES.

No. 152.—OcToBEr Term, 1933.

Newton W. Lumbra, Petitioner, On Writ of Certiorari-to ,

, the. United States .Cir-

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-_ . P cait Court of Appeals”

The United States of America. for the Second Cireuit.

[January 8, 1934.]

Mr. Justice BuTLER delivered the opinion of the Court.

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. Petitioner was a private ‘in the army of the United States

from July 14,.1917, to April. 29, 1919. In September, 1917, he

obtained war risk insurance against death or total permanent dis-

ability. May 31, 1919, the policy lapsed for nonpayment, of pre-

miunis. November 30, 1931, he-brought this suit in the federal dis-

trict court for Vermont alleging that before May 31, 1919, the

_ policy was matured by“his total permanent disability. Issue having

been joined, there was trial by jury. At the close of all the evi-

dence respondent requested the court to direct a verdict in its

‘favor. The court denied the motion and; the jury having found. -

for petitioner, entered judgment in his favor. The Cireuit Court

of Appeals reversed. 62 F. (2d) 796. : §

Petitioner’s clan is that while the policy was in force he be-

came subject to récurring spells of headache, dizziness, epileptic

Seizures and other illness constituting total permanent disability.

The Circuit Court of Appeals held the evidence not sufficient to

show total permanent disability of petitioner while the insurance ~

' was in force. The question presented is whether there was any:

evidence upon which @ verdict for petitioner might properly be

found. And, for its: deci ion, we assume as established all the facts ©

that the evidence supporting petitioner’s claims reasonably tends to

prove, and that there should be drawn in his favor all the inferences

fairly. deducible from such facts. Gunning v. Cooley, 281 U S.

90, 94;

Before joining the army petitioner, was a laborer. and worked

"-eutting logs, building roads and as a farm and factory hand. When

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Pa, ae "..Lumbra vs. United States.

enrolled he was a healthy and strong man of: 25 years. He served

overseas in a machine gun company. - - One of. his jankles was injurea

June. 16, 1918, and two days later he. was taken for treatment ‘ ‘to

a base hospital where he. remained about a month, It was there

recorded that while going into a dugout, he had slipped and

- Severely sprained his ankle, that there was-no fracture and that his

general condition, heart, lungs and nervous system were satisfat- -

tory. When discharged from the.-hospital he joined his company

/-and remained with it until. mustered out at Camp: Devens, Massa-

chusetts, April 29, 1919: The official_record shows that upon a

careful éxaminafioi at that time by an army surgeon-he was found

mentally and .physically sound; that he declared he had no reason

S to believe he was impaired in health or was Buffering from the ef-

Meets of any wound, injury or disease, and that his company com-

_mander had. no reason: to believe. hé then had ny wound, injury

~ er disease. :

In 1920 ‘petitioner veveeal times eonsulted Dr. Frank B. Hunt

‘who certified, December. 7, 1920, he found petitioner suffaring

from rheumatism, hronie bronchitis and nervousness. At the frial

Dr. Hunt testified that petitioner was not when examined totally

incapacitated and did not. complain of having.had epileptic seizures

of any kind. It seems that the certificate was intended. for usé in

support of an application to the United States for compensation.’

And, apparently in conneétion with such an application, petitioner

was examined by Dr. Byron-Herman. of the Public Health Service.

‘Under’ date of December 10, 1920? Dr. Herman reported that while

in the army. petitioner was never sick although in the hospital once -

for a sprained ankle, that he became ill. after getting. home aind’

that, he then: complained of rheumatism, throat trouble, and husky .

‘voice. The doctor’s diagnosis. w as chronic rheumatism ahd ‘chronic

taryngitis, his prognosis was: ‘Good’. He reported that petitioner

‘was able to resume his former occupation; that the degree of voca- °°

» tional handicap was negligible and that vocational training was

- feasible. ‘January 17, 1921, petitioner verified an application for

eompensation’ stating that he was sufferi ing from bronchial troubles,

: 1Compensation for death -or disability resnlting from personal | injuries

‘suffered or disease contracted. in the line of duty was provided by Art. ITI,

‘Act of October 6, 1917, 40 Stat. 405, as amended.. The grant of insurance

’. was authorized by Art. IV, Act of October 6, 1917, supra, p. 409, as amended.

See Runkle v. United States, 42 F. _— 804, 806.

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Lumbra vs. United States. _ 8

- rheumatism and‘nervousness which commenced about a year earlier

and were caused by gas and exposure in France. And, in March,

1922, claiming to be partially disabled by reason of ailments of

the langs and throat,. petitioner made application for compensa-

- tion and training.

In April, 1924, ‘and in January, 1925 and 1926, petitioner was

examined by Dr. Waldo J.’ Upton, a specialist in nervous and

mental diseases. He represented that he had no injury or illness

- during his. military. service and was in good physical condition

when discharged but that a few months later he became nervous, |

weak and unable tq endure noise. The doctor diagnosed the case

as one of mild neurasthenia characterized by weakness, irtitability

and quick fatigue under-stress. He found petitioner able to work

-at any occupation involving light labor with reasonable regularity

and-without danger. He also’ examined petitioner in 1928, $929

and 1930. At the first-examination petitioner reported that in

| —4926 and 1927 he had suffered attacks of unconsciousness. The.

doctor found petitioner suffering from severe. neurasthenia and

severe ' hysteria. In 1930 he found petitioner had pronounced

_ psy choneurosis and that his condition suggested he was dev veloping

grand mal epilepsy. The doctor’s testimony indicates that from

1924 petitioner’s condition became progressively worse.

In 1926, Dr. Herman found petitioner was having grand mal

epileptiform seizures. .He prescribed medicine and sent petitioner

to.a government. liospital-where he remained a month. ‘In August,

1927, Dr: James O’Neill examined him. . Petitioner said he had not

been sick in the army and had Sustained no injury except to his

_ ankle and a slight gassing, but that he had been nervous practically

from the time he left the army. Within the previous year he had

. suffered infrequent fits and had not then worked for nine weeks.

His ailment was diagnosed as sévere hysteria and the doctor was

of opinion-he could have worked. In March, 1929, Dr.-Alan David-

son made a diagnosis of epilepsy. Petitioner then said he had

been having uncontrollable nervous attacks whieh wegen | when he

was in the hospital in France. ;

Petitioner had no medical treatment ere 1920 and 19 26. |

From that time.to 1930,he was sent to the hespital seven times and

received treatment for ‘periods ranging from two to eight weeks.

-The government granted petitioner’s applications for compensa-

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tion. Commencing in 1924 he was rated 10 per cent. disabled and ~

paid. $9 or $10 a month. Later, increases for disability. were found

‘ and more compefisation was allowed until in August, 1930, his d nm.

bility was rated at 100 per cent. and he was. given $94.50 per month °

in addition to $10.50 allowed for his child,

From July, 1919, until the beginning of March, 1929, it ap-

pears that petitioner was employ ed more or less regularly except .

for periods aggregating about two years for which he does not ac-

count. Until January, 1921, he worked in a veneer factory. Te

was discharged, he testified, because he lost ‘too much time by

. reason of weakness and dizzy spells. Then he helped on his sister’s

farm for three or four months. The next definite information as to

his employment ts that in July, 1922,.he ecommenced as a machin-

ist’s helper in the shops of the Central Vermont Railway Company.

He worked about two-thirds of full time until.May 15, 1923, when

he was laid off.on account of foree reduction. It does not appear -

what he did from then until February 18, 1924. At that time he .

was- again employed by the Central Vermont, and worked néarly

full time as a laborer until May when he quit in order to work in

the Boston & Maine Railroad shops. In the following November

* he was discharged because, as he said, illness caused him to lose

_too much time. In December, 1924, he was employed for tlie third”

time by the Central Vermont. He worked about 85 per cent. of the-

time until August 23, 1926. Then he went to the hospital for a

month, but he did not return until November; he worked nearly

full time for the remainder of the year. - In 1927, he worked about

half time: that is, until the end of June he worked about 85 per

cent. of full time, he then went to the hospital for an undisclosed

period, and in October and November he worked about 70 per cent. |

of full time. Then *he was out until the enfl of January, 1928.

Thereafter, until he was discharged in March, 1929, he worked

about 80 per cent. of full time. ©

. On. each of the three oceasions he went to work for ‘the Cen-

tral Vermont, he made application for employment in which he

represented himself to be free from bodily complaints and of a

strong constitution. The record contains testimony: that through-

out the period of this employment petitioner seemed tired and ill,

that he was transferred a number of times to lighter work, and

that, had he not been a veteran, he would have been discharged.

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The substance of petitioner’s testimony, in so far as it adds

materially to the facts and evidence ame referred to, may be

stated briefly :

Jitne 16, 1918, a shell*explosion threw him, injured his ankle,

shocked him severely, and caused him‘to lose consciousness for a:

time and tg suffer spells of dizziness, headaches, weakness and great

perspiration at least once a week during the month he remained in

the hospital. Desiring to leave the hospital, he refrained from dis-

closing his illness to attending physicians or others. After he re-

sumed active service, the spells became worse. He disclosed his con-

‘dition to the company commander and because of it was assigned to

work in the kitchen. He did not get better while in France. After

discharge, April 29, 1919, he went to his mother’s home in Ver-

mont and rested .for some months. The spells continued, grew

worse and sometimes would last a day. After commencing work

in July, 1919, he waS unsteady and weak, lost much time and on

account of his condition was given lighter work and finally dis-

charged in January, 1921: Early in 1923, he suffered a seizure

in Which he lost consciousness for about 15 minutes. So far as

appears, this was the first seizure in which petitioner fell or be-

. ¢ame unconscious. Later he suffered such attacks with increasing .

frequency and intensity.

At the trial, medical men gave opinion evidence which, when

considered in conneetion with the facts and circumstances rightly

to be taken as proved, is sufficient to sustain a finding that peti-

tioner’s illness before’ and after the lapse of the policy resulted

. from injuries and exposure while in the military service gnd that

the epileptiform and epileptic fits, such as that suffered March 1,°

1923, and later, are not curable.

The war risk contract unqualifiedly insures against ‘‘total per- ©

-.manent disability’’. The occasion, source or eause of petitioner’s

‘illness i is therefore immaterial.2 His i injuries, exposure and illness

before the lapse of the policy and his condition in subsequent years *

have significance, if any, only to the extent that they tend to show

whether he was in fact totally and permanently disabled during Se.

the life of the policy.* March 9, 1918, in pursuance of the authori- ;

2United States v. ‘Golden, 34 F. (2a) 367, 370. aie States v. Tyrakowski,

50, F. (2d) 766, 768.

3Carter v. United States, 49 F. (2d) 231, 224. Eggen v. United States,

58 F. (2d) 616, 619. Wise v. United States, 63 F. (2d) 307, 308. United —

States v. Clapp, 63 F.: (24) roe, 795." United States v. Linkhart, 64 ¥. (24)

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zation contained in the War Risk Tusuranee Aet, “the direetor of

the bureau ruled (TT. D. 20 Wo RL): * Any Hpairment of mind or

body which renders if impossible for the disabled person to follow

continuously any substantially gainful oeeupation shall be deemed |

to be tetal disability. ‘Total disability shall be deemed to

be permanent whenever if is founded upon conditions whieh render

if reasonably eertain. that aM will continue Hhromjchont the life of

the person suffering trom if, ; ;

The phrase ‘total permanent disability "is te he construed

reasonably and: having rerard fo the etrenmstanees of each ease,

As the insuranee authorized does not extend te total temporary or

partial permanent disability the fests appropriate for the deter:

a

mination of either need not be aseertained. The v various Tes

inhertuy in the phrase make impossible the ascertainment of any

fixed rules or formulae uniformly totgevern its construetion. "That:

whieh sometimes results in total disability. may eause slight incon

venience under other eonditiois. -Seme are able to sustain them

selves, without serious loss of productive power, against injury or

disease sufficient totally te disable others. Tt eannot be said that

Injury or disease suMiciont merely to prevent one from again doing |

some work of the kind he had been aeeustomed to perform consti

tutes the disability meant by the Nef for suth impairment mity

not lessen or affeet his ability to follow other useful, and perehanee

more lnerative, oeeupations. Frequently serious physieal impatr-

ment stimulates to sueeessful effort for the acquisition of produe

tive ability that theretofore remained undeveloped. .

The above quoted administrative deeision is not, and manifestly

was not intended to be, an exaet de Minition of total permanent dis-

ability or the sole guide by whieh th: if expression is fo be construed.

If read literally, every impairment from time to time eompelling

interruption of gainful oeeupation for any period, however

brief. wonld be total disability. Aud, if sueh impairnient were

shewn reasonably certain not to beeome less, it would eoustitute

total permanent disability, Persons if sound health oe ‘asionally

e* ... The divcctor, salaiaet to the. uu direction of the Seeret: ary

of the Treasury, shall adaninister, execute, and enforee the provisions of this

Aet. and for that purpose have full power and authority to make rules and

regnuiations, not inconsistent with the provisions of on Act, necessity or .

appropriate to carry out its purposes .. 2°" Seetion added by § 2, Act

of Qetober 6, 1917, 40 Stat. 399. .

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Lumbra ve. United States. 7

suffer ilness requiring them to remain in bed for a time. It

iN net inaccurate to desxeribe sueh illness, as ‘total inability’.

while it lasts. But clearly it is not right to way that, if they re-

main sound but reasonably eertain throughout life ocensionally to

have like periods ‘of temporary iTnews, they are aufering from -

“fotal permawent disability’ Sueh a eonstruetion would be un-

reasonable ane contrary fo the intention of Congress, “Total

disability’ does not mean helplessness or eomplete disability but

it ineludes more than that whieh is partial ‘Permanent. disabil-

ity" means tht whieh is. continuing ax opposed to what is tem-

porary. Separatecand distinet periods of temporary’ disability do.

not constitute that whieh is permanent. The mere faet that one

has done some work after the lapse of his poliey és not of itself

“suflicient to defeat his élaim of total permanent disability. Tle may

have worked when really unable and at the risk of endangering

his health or life.” But marrifestly work performed may be such

as conclusively to negative total permanent disability at the cartier

time” . ee: .

I. requires no dierapine fo show that the evidence in’ respeet

of petitioner's condition during-the life of the poliey has no sub-

stantial tendeney to prove fotal permanent disability at the time

of the lapse. The evidence ax to his subsequent: condition may be

considered only for the purpose of determining bis condition while

the contract was in foree. Tis‘eénduet following the alleged: ae-

erual of his claim reflyets his own opinion as to whether he was

totally and) permanently: disabled: at the time of the apse. His

own statements to niedieal men, their. diagnoses, his repeated ap-

plications to the Government. for compensation and his failure

earlier to assert. any claim show that-for a deeade he did not. be-

lieve that, he was totally and permanently disabled when he let.

his policy lapse May 31, 1919. And in the absence of elear and

satisfactory evidence explaining, excusing or justifying: it, peti-

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*United States vr, Philip, 44 FB. (2d) 6x9, 691. United ‘Hinton v. God-

frey, 47 BL (2d) 127. Carter 7. United States, 49) F. (2d) 221, 223.

United. States v. Lawson, 50 F. (2d) 646, 651. . Nicolay v. United States,

51. (2d) 170, 173. ae , -

“United States v. Harrison, 49 F. (2d) 227. Nicolay v. United States, 51

F. (2) 170, 173-4. United States 9. Perry, 55 F. (2d) 819, 824. United

States a. mete, 56 BF. (2d) 522, 524. United States v. Diehl, 62. (2d) -

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~ tioner’s long. delay Stee bringing suit is to be taken as strong

evidence that he was not totally and permanently disabled before

the policy lapsed.’

It may be assumed that occasional inal for short periods by one

generally disabled by impairment of mind or body does not as a

matter of. law negative total pérmanent disability. But that is

not this case. Petitioner, while claiming to be weak and ill and,

contrary to the opinion and diagnoses of examining physicians,

that he was really . unable to work, did-in fact do much work. For

' long periods amounting in tlie aggregate to more than five years

out of the ten following the lapse of :the policy he worked for sub-

_ Stantial pay. No witness, lay or expert, testified to matters of fact

or expressed opinion tending to support petitioner’s claim that he

had suffered ‘‘total permanent disability”? before his policy lapsed.

Unless by construction these words are given a meaning far dif-

ferent from that they are ordinarily used and understood to con- ~

vey the evidence must be held not sufficient: to support a verdict

' for petitioner. The trial court should have directed a verdict for

the United States. Gunning. v. Cooley, 281 U. S. 90, 93. Stevens

v. The — City, 285 U. S. 195, 204.

; Affirmed.

A true copy.

Test :.

Clerk, Supreme Court, U. 8.

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TUnited States v. Hairston, 55 F. (2d) 825, 827.. Wise v. United States,

63 F. (2d) 307, 308. United States v. Linkhart, 64 F. (2d) 747, 748. And

‘see United. States v. Eggen, 58 F. (2d) 616, 618.

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