United States v. Stephens (73 F.2d 695, 1934)

WILBUR, Circuit Judge.

This is an appeal from a judgment against the government upon a policy of war risk insurance. The assignments of error relate to rulings upon the admissibility of evidence, to the ruling of the court denying appellant’s motion for directed verdict, and to the refusal of the court to give an instruction requested by the defendant. The first three assignments relate to the admissibility of the testimony of a physician as to whether or not in the opinion of the witness the veteran was totally and permanently disabled. In view of the importance of the question, we state the entire question, objection, and answer, and include the testimony of the physician, Dr. John R. Morgan, concerning the conditions which he found in his examination, which conditions were included in the hypothetical question by reference:

“I am a graduate of Northwestern University and have practiced over 25 years at Twin Falls in a general practice. I am acquainted with the plaintiff and have treated him. I commenced to treat him in the fall of 1928 when he came to me with trouble in breathing and a bad cough.

“Q. Did you make an examination of him? A. I examined him, his throat, head and nose and found an enormous amount of infection in the throat and nose, which could have predicated the cough. Following that time or around about that time I took Bennie into the room and had him stripped down to his waist and my observations there were of a man that was thin, poor, his spaces above and below the clavicular were very much thickened. His face was very red and synotie also his arms and feet. The respiratory center was rather abrupt. He was very round shouldered and stooped. His breathing was labored. I would have him take a long breath and it would produce a spasm of coughing. It was a hoarse cough and came in spasms very much like a whooping cough. He would almost get out of breath. It was a productive cough and he would raise a lot of sputum with that cough. I have seen, in my estimate in having him cough, he possibly would raise a teacup of sputum at each cleaning. Do you want me to continue with my full physical examination of this man ?

“At a later time I think I went farther. I would say I have been his family physician since that time. He has been in my office on and off ever since. I have treated him. I think in the fall of 1930 or 1931 I made a physical examination of tho plaintiff.

“Q. What were your findings on that examination? A. The findings of his chest was much like he had when he first come, but in the abdomen particularly when he was coughing, Bennie would wear a truss, and when he would cough it would produce a couple of lumps — a lump in each groin. These I interpreted to be a rupture produced by excessive coughing. This sputum he was spitting np was examined and found to bo negative for T. B. hut had an enormous lot of pus cells and it would indicate that the tissues and cells were being destroyed. There was also some blood in the sputum. There was a lot of rales through the base of his chest and more prominent in the left side; that is they extended higher. There was bronchial breathing and I had some x-ray pictures taken—

“Mr. Dawson: Just a minute. Did you take those pictures yourself ?

“A. I took him to the laboratory and had him stripped right down and the technician there took the x-rays under my supervision and observation. The x-ray findings verified my physical findings. The bronchial tree and tubes of this man showed up in the x-ray picture about as plain as I have ever seen them show np when we have the stuff in them to take an x-ray picture. They showed up white fibrosis according to my interpretation of the bronchial tree. There were a few of the lymph nodes that were calcareous and showed np in the x-ray.

“Q. Now, Doctor, what effect upon a man’s physical well being do these findings indicate? A. To my mind these findings incapacitate this man and put him in the class of total and permanent disability for labor, for work.

“Q. In what way do they affect him- — how effect that result? A. There are several ways. We know from these findings that the blood stream that carries the blood and nutrition to the body is deprived of carrying it to the body, of carrying oxygen to the body.

“Q. What effect upon a man’s ability to act does the failure of the body to get the needed oxygen have? A. Well I would illustrate it like this. If you were placed in a small room and all the oxygen taken out of tho room- — it would be something like that, you couldn’t get enough oxygen to keep on breathing with. This man is being starved for want of oxygen. That destroys his vitality, his endurance, his alertness. The breathing would probably be more rapid, more irregular. It would probably be nature calling for more oxygen.

“Q. What in your judgment produces this violent coughing? A. The enormous amount of infection that this man was having in -his nose and throat and bronchial tubes and besides that the destruction of those tissues as well as the fibrous formation around the bronchial tree and tubes to the lungs. This patient, the slightest irritation would produce tho cough and expectoration. It clears off those waste products and yon can secure a little more oxygen.

“Q. In the condition in which yon found this plaintiff in 1928 state whether or not he was able to perform continuously any kind of labor? A. In my opinion he was not able to continuously carry on any labor that created any exertion to amount to anything.

“Q. What would you say as to his condition at the present time in that respect? A. I would say he is probably getting worse every year.

“Q. Doctor, you may assume that the plaintiff in this action, Benjamin F. Stephens was bom in Indian Territory on or about the 12th day of July, 1881; that he was raised on a farm and never did any substantial amount of work or labor except farm work np to the time he enlisted in the army, Feb. 26, 1918. That in his schooling he advanced as far as the third grade reader and now can scarcely read, neither read nor write. As a young man he entered into his service and enjoyed going to dances and such amusements, enjoyed hunting and never suffered from coughs or colds or throat or lung trouble ; that ho worked during the farming season of every year from the time he was old enough to work until he entered the service and received tho going wages for farm work in the community in which he lived and worked. That he pitched hay and worked around threshing machines, pitching bundles to the machines. At the time he enlisted in the service he weighed 122 pounds, was 5 feet 3% inches high; that he never suffered pain or weakness in the knees or feet and never had any trouble with his lungs or bronchial tubes. He enlisted February 26, 1918, at Twin Falls, Idaho; that on this date before being inducted into tbe service, he passed a general physical examination by the government doctor who found head, chest, abdomen, extremities normal; heart normal, nose and throat normal, genito-urinary organs normal; hernia none; hemorrhoids none. Vision right eye 20/20 — 1; left eye 20/20x; hearing right ear normal; left ear normal; pyorrhea slight; curvature of spine slight, left. Hyperdosis slight both feet. That he went to the Fort Douglas, Utah, from Twin Falls; that while at practice throwing hand grenades he injured his thumb on the right hand which thumb still continues to give him pain; that he was not hospitalized but was marked ‘quarters’ and just laid around; that he remained at Fort Douglas until the last of June when he was sent to Camp Funston and then to a development camp at Fort Riley and from there to Camp Merritt, New Jersey, and thence to Brest, France, and from there to the rest camp where he stayed about a week. From there he was taken to a station back of the front and here he was under shell fire. That he was in Company 353 Ambulance corps as stretcher bearer; that about six o’clock on the morning of October 26, 1918, while he was sleeping in a cave a shell exploded within about five feet of him, a fragment of the shell striking his helmet which rested on his head with such force he thought his head was rop- or legal test of permanent and total disability, it would have been a proper question, but this assumption is dictum.

The appellee contends that the decisions for the Fourth and Seventh Circuit Courts of Appeals are erroneous and should not be followed. Before further consideration of that question, wo call attention to the fact that the specific question asked in the case at bar has some objectionable features not involved in the above decisions. A hypothetical question which calls upon a witness to determine the credibility of other witnesses or to pass upon conflicts in the testimony invades the province of the jury, whose duty it is to determine where the truth lay in cases of conflicts in the evidence. Dexter v. Hall, 15 Wall. (82 U. S.) 9, 21 L. Ed. 73; Jones on Evidence, vol. 2, § 372; Estate of Gould, 188 Cal. 353, 205 P. 457; 22 C. J. § 807, p. 720. As stated in Jones on Evidence, vol. 2, § 372:

“ * * * All questions calling for their [expert] ojiinion should he so framed as not to call upon them to determine controverted questions of fact or to pass upon a preponderance of testimony. ■*' v * When the question is so framed as to call npon the expert to determine as to which side of the evidence xmoponderates, or to reconcile conflicting statements, he is in effect asked to decide the merits of the ease, which is a duty wholly beyond his province. * * *

Page 913: “Although eases almost without limit might be cited which recognize the principle that an expert cannot he called upon to give an opinion determining the merits of the case or to weigh conflicting evidence, or to judge credibility of the testimony, such witnesses are constantly allowed to state their opinions based upon facts within their own knowledge or facts assumed in hypothetical questions. If the hypothetical question properly presents the fact which the evidence tends to prove, and does not call npon the witness to reconcile conflicting evidence or pass ujion the merits of the case, a wide range may be given by the court and a liberal allowance as to its form.”

In the foregoing question, the witness was asked to assume that at the time of insured’s discharge the medical officer who examined him certified that the insured was physically and mentally fit excepting only the results of exposure to mustard gas on October- 26, 1918, and that that disability was not likely “to result in, death or disability,” and that “in view of his occupation he was not disabled at all.” The question called npon the witness to determine whether or not in his opinion at the time of the defendant’s discharge on May 26, 1919, ho was totally and permanently disabled, and this in the teeth of the medical certificate that at that time he was not disabled at all. In effect, the witness was called npon to determine whether or not at the time of his discharge the certificate of the medical examiner signed at that time did or did not state the true condition. If it stated the true condition, of course he was not then totally and permanently disabled. The witness could not assume the certificate to he true without answering that the veteran was not disabled at the time of his discharge. It is evident, therefore, that in his answer he assumed that the certificate did not state the truth. The certificate referred to had been introduced by the plaintiff, and was entitled to such weight as the jury might assign to it. It is manifest then that the hypothetical question called upon the witness to invade the province of the jury in determining where the truth lay with reference to the condition of the veteran at the time the medical examiner certified that he was under no disability. For this reason alone the objection should have been sustained.

The same objection would apply to the statement of the veteran that he was not disabled when discharged. In this connection it appears from the government records introduced by the plaintiff that on May 23, 1919, he was asked the question, “Have you any reason to believe that at the present time yon are suffering from any effects of any wound, injury or disease, or that you have any disability or impairment of health whether or not incurred in the military service,” and that the insured answered “No.” The fact that this question was asked the insured at the time of his discharge is stated in the hypothetical question above quoted, but the answer “No” to the question given in the medical record is not embodied in the hyjiothetieal question, although no doubt this fact was overlooked by the court, by counsel, and by the jury. We refrain from further discussion of that phase of the matter because of the fact that it appears from the tran- ' script that the hypothetical question did not include the answer of the veteran.

We now pass to a consideration of the general question as to whether or not the submission of the question of permanent and total’ disability to the witness invaded the province of the jury. The decisions of the Circuit Courts of Appeals for the Fifth and Seventh Circuits held that to permit a medical witness to give an opinion on whether or not the veteran who elaims to be totally and permanently disabled is able continuously to engage in an occupation is to permit the witness to decide the very question to be submitted to the jury. That this ruling is correct is made clear by the nature of the question and answer admitted in the case at bar. The question incorporated a definition of total and permanent disability, so that in effect the attorney asking the question instructed the witness as to what constituted total and permanent disability under the law, and submitted to the witness the question as to whether or not under that law the witness was of the opinion upon the facts assumed that the disability of the veteran was total and permanent. Thus the witness was asked to decide the exact question for the jury; that is, the question of total and permanent disability under the law and the facts. The witness received his instructions as to the law from the attorney instead of from the court, and delivered an “opinion” .upon the law and the facts instead of a verdict, as in the case of the jury. In addition to determining what constitutes continuous employment, the witness was called upon to determine whether in his opinion the rewards for. the labor of the insured have been, or may be expected to be, substantially gainful. This again was a question for the jury and not for an expert medical witness.

There is another phase of the hypothetical question which is objectionable as an invasion of the province of the jury. The witness was called upon to state whether or not the veteran was capable of continuously following any .gainful occupation whatever. This leaves to the witness the duty of surveying the whole field of human endeavor to determine whether or not the veteran was capable of engaging in any substantially gainful occupation. The hypothetical question does not ask the witness to confine his answer to any specified occupation, nor does it call the attention of the witness to the requirements of any particular occupation, and hence the hypothetical question is open to the common objection that it does not disclose the facts upon which the answer of the expert is to be based. Raub v. Carpenter, 187 U. S. 159, 161, 23 S. Ct. 72, 47 L. Ed. 119; Wigmore on Evidence, § 681. It leaves the witness, in regard to occupation, to do exactly what each juror is called upon to do; namely, to use his common knowledge as to the requirements of the various occupations and to determine upon such knowledge whether or not the veteran is capable of pursuing any gainful occupation. The jury should have been informed by the witness as to the extent of the physical disability of the veteran and then should have applied to that information its own common knowledge of the affairs of men in reaching a verdict.

“ * * * From the very nature of expert testimony it follows that it is admissible only when it relates to a subject matter with which the average experience and common sense of the jury are insufficient to deal.” 11 R. C. L. § 19, p. 591, supra.

See, also, Inland & Sea-Board Coasting Co. v. Tolson, 139 U. S. 551, 560, 11 S. Ct. 653, 35 L. Ed. 270. As stated by the Supreme Court of California in Kauffman v. Maier, 94 Cal. 269, 29 P. 481, 484, in connection with the admissibility of the testimony of a machinist as to whether or not a rough revolving shaft was dangerous to workmen in the vicinity: “Such questions are to be determined by the jury themselves, either from their own experience in matters of common observation, or from all the evidence in the ease, and cannot be asked of witnesses, even if sueh witnesses are experts in some particular art or science. Sappenfield v. Main Street, etc., R. R. Co., 91 Cal. 60, 27 P. 590. If the court permits the jury to be influenced by the judgment of such witnesses, it deprives the litigants of their right to have the jury render its verdict upon the facts in the case, and to this extent substitutes the judgment of the expert for what should be the judgment of the jury.”

But there is an even more serious objection to the question in this, that the definition of total and permanent disability submitted to the witness is not the legal test of total and permanent disability. In Lumbra v. United States, supra, it is held that this definition is not the sole test of total and permanent disability. Up to the time of the decision of that case by the Supreme Court, it had been assumed in the trial of war risk insurance cases that the administrative definition was the legal definition of total permanent disability. That definition has been incorporated in hypothetical questions and in instructions to the jury in many eases. As p&inted out by the Supreme Court, it is not a very satisfactory definition, because, in the case of any illness which is likely to recur from time to time, it could be said that the veteran was not able “continuously” to labor. In view of the importance of the matter, in this and oilier pending cases, we quote from the decision of the Supreme Court in Lumbra v. United Stales, supra, as follows:

“The war risk contract unqualifiedly insures against ‘total permanent disability.’ The occasion, source, or cause of petitioner’s illness is therefore immaterial. His 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 the life of the policy. Ma roll 9, 1918, in pursuance of the authorization contained in the War Risk Insurance Act, the director of the Burean ruled (T. D. 20 W. R.): ‘Any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation shall be deemed ! 5 to be total disability. Total disability shall be deemed to be permanent whenever it is founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering from it.’

“The phrase ‘total permanent disability’ is to be construed reasonably and having-regard to the circumstances of each case. As the insurance authorized does not extend to total temporary or partial permanent disability, the tests appropriate for the determination of either need not be ascertained. The various meanings inhering in the phrase make impossible the ascertainment of any fixed rules or formulas uniformly to govern its construction. That which sometimes results in total disability may cause slight inconvenience under other conditions. Some are able to sustain themselves, wilhout serious loss of productive power, against injury or disease sufficient totally to disable others. It cannot be said that injury or disease sufficient merely to prevent one from again doing some work of the kind he had been accustomed to perform constitutes the disability meant by the act, for such impairment may not "lessen or affect his ability to follow other useful, and perchance more lucrative, occupations. Frequently serious physical impairment stimulates to successful effort for the acquisition of productive ability that theretofore remained undeveloped.

“The above-quoted administrative decision is not, and manifestly was not intended to be, an exact definition of total permanent disability or the sole guide by which that expression is to be construed. If read literally, every impairment from time to time compelling interruption of gainful occupation for any period, however brief, would be total disability. And, if such impairment were shown reasonably certain not to become less, it would constitute total permanent disability. Persons in sound health occasionally suffer illness requiring them to remain in hod for a time. It is not inaccurate to describe such illness as ‘total disability’ while it lasts. But clearly it is not right to say that, if they remain sound hut reasonably certain throughout life occasionally to have like periods of temporary illness, they are suffering from ‘total permanent disability.’ Such a construction would he unreasonable and contrary to the intention of Congress. ‘Total disability’ does not mean helplessness or complete disability, but it includes more than that which is partial. ‘Permanent disability’ means that which is continuing as opposed to what is temporary. Separate and distinct periods of temporary disability do not constitute that which is permanent. The more fact that one has done some work after the lapse of his polley is not of itself sufficient to defeat his claim of total permanent disability. lie may have worked when really unable and at the risk of endangering his health or life. But manifestly work performed may be such as conclusively to negative total permanent disability at the earlier time.

“It requires no discussion to show that the evidence in respect of petitioner’s condition during- the life of the policy has no substantial tendency to prove total permanent disability at the time of the lapse. The evidence as to his subsequent condition may be considered only for the purpose of determining his condition while the contract was in force. His conduct following the alleged accrual of his claim reilects his own opinion as to whether he was totally and permanently disabled at the time of the lapse. His own statements to medical men, their diagnoses, his repeated applications to' the government for compensation, and his failure earlier to assert any claim, show that for a decade he did not believe that he was totally and permanently disabled when he let his policy lapse May 31, 1919. And in the absenee of clear and satisfactory evidence explaining, excusing, or justifying it, petitioner’s long delay before bringing suit is to be .taken as strong evidence that he was not totally and permanently disabled before the policy lapsed.

“It may he assumed that occasional work for short periods by one generally disabled by impairment of mind or body does not as a matter of law negative total permanent disability. But that is not this case. Petitioner, while claiming to he 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 the aggregate to more than five years out of the ten following the lapse of the policy he worked for substantial 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 different from that they are ordinarily used and understood to convey, 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, 50 S. Ct. 231, 74 L. Ed. 720; Stevens v. The White City, 285 U. S. 195, 204, 52 S. Ct. 347, 76 L. Ed. 699.”

It is clear that, if the hypothetical question was otherwise unobjectionable, it was error to permit the witness to state a conclusion or opinion as to the veteran’s total and permanent disability upon an erroneous definition of what constitutes total and permanent disability. The decision in the Lumbra Case, supra, makes it clear, if it was doubtful before, that the question of whether the veteran is able to follow a substantially gainful occupation with reasonable continuity is a question for the decision of the jury and not for the decision of a medical witness.

We hold, then, that the objection to the hypothetical question should have been sustained for the following reasons:

(1) It called upon the witness to solve conflicting inferences upon the assumed facts.

(2) It permitted the witness to determine what in his judgment constituted continuous employment.

(3) It permitted the witness to determine what amount of employment or reward for employment was substantially gainful.

(4) It did not limit the question to a single occupation or state the requirements of any occupation, and hence did not state the facts upon which the witness necessarily based his opinion.

(5) The submission to the witness of any definition of total and permanent disability in a question which required the witness to apply that definition to the assumed facts was an invasion of the province of the jury, and consequently not a subject for expert testimony.

(6) It submitted to the witness an erroneous definition of total and permanent disability as a basis for the answer to the question.

Judgment reversed.