Lockett v. United States ( 1936 )

SIBLEY, Circuit Judge,

Clara Louise Lockett brought suit 0n her son’s war risk insurance certificate and lost it by a directed verdict. Her son *2 ^ enli^teClin th*T An^ ]9Q]SQ and t0 ^ve been discharged m April, J919’ after wh?ch ™ PJe™is were paid, . ls nee was injure m e service, cauis xng a permanent limp, and he looked bad anc( was subject to nervous spells from the time of his discharge, but held several jobs during 1920. In 1921 for the first time since his discharge he received medical treatment. Proof was offered and rejected that in 1923 he was rated for compensation as totally disabled for a period beginning May 25, 1921. He died in Kansas City in April, 1924. A letter from an unidentified dlat cit/ was offered and re-Jected’ whlch stated that Lockett kad had convulsive seizures on the street which did not look like true epilepsy. No testimony fr0m physicians was introduced. So far as appears, Lockett before his death made no ciaim that he was entitled to disability payments from the time of his discharge, although as above indicated he applied for and obtained compensation. His mother filed her claim for the insurance installments accruing since his death only on June 27, 1931. In such circumstances there is a heavy burden on her to show clearly that when the policy lapsed for nonpayment of premiums in May, 1919, her son was in truth both totally and permanently disabled. Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492. Without stating the evidence in detail, we think she wholly failed to produce proof on which a jury could find more than partial disability at that time. A rating for compensation is not usually admissible to show total and permanent disability for insurance purposes, but, if the evidence offered had been received, it would not in the least prove Lockett to have been totally disabled in May, 1919. Apparently it was decided that, thoitgh his condition originated in the service, it did not incapacitate him earlier than May, 1921. The rejected letter was pure hearsay; in no way an official report. It also threw no light, if admitted, on Lockett’s condition in 1919. The verdict was correctly directed against the claim.

Affirmed.