Wiley Blount Rutledge

“ This period was eight years of continuous insanity, according to the inference petitioner would be allowed to have drawn. If so, he should have no need of inference. Insanity so long and continuously sustained does not hide itself from the eyes and ears of witnesses. [13] The assiduity which produced the evidence of two 'crazy' incidents during a year and a half in France should produce one during eight years or, for that matter, five years in the United States. ”

“ The constitutional argument, as petitioner has made it, does not challenge generally the power of federal courts to withhold or withdraw from the jury cases in which the claimant puts forward insufficient evidence to support a verdict. ”

“ Judged by this requirement, or by any standard other than sheer speculation, we are unable to conclude that one whose burden, by the nature of his claim, is to show continuing and total disability for nearly twenty years supplies the essential proof of continuity when he wholly omits to show his whereabouts, activities or condition for five years, although the record discloses evidence must have been available, and, further, throws no light upon three additional years, except for one vaguely described and dated visit to his former home. ”

“ Certain facts are undisputed. Petitioner worked as a longshoreman in Philadelphia and elsewhere prior to enlistment in the Army November 1, 1917. [3] He became a cook in a machine gun battalion. His unit arrived in France in April, 1918. He served actively until September 24. From then to the following January he was in a hospital with influenza. He then returned to active duty. He came back to the United States, and received honorable discharge April 29, 1919. He enlisted in the Navy January 15, 1920, and was discharged for bad conduct in July. ”

“ If he takes the gamble and loses, he pays with his own case, regardless of its merit and without opportunity for the jury to consider it. To force this choice and yet deny that afforded by the directed verdict would be to imbed in the Constitution the hypertechnicality of common-law pleading and procedure in their heyday. Cf. note 22, supra.↑ Under that practice the moving party receives the benefit of jury evaluation of his own case and of challenge to his opponent's for insufficiency. If he loses on the challenge, the litigation is ended. ”

“ But eight years are too many to permit it to skip, when the bridgeheads (if the figure may be changed) at each end are no stronger than they are here, and when the seer first denies, then admits, then denies again, that what took place in this time would make 'a great deal' of difference in what he saw. ”

“ It hardly affords help to insist upon 'substantial evidence' rather than 'some evidence' or 'any evidence,' or vice versa. The matter is essentially one to be worked out in particular situations and for particular types of cases. ”

“ He broke right down.' He explained petitioner's enlistment in the Navy and later in the Army by saying, 'It would have been no trick at all for a man who was reasonably conforming to get into the Service.' (Emphasis added.)
However, the witness knew 'nothing whatever except his getting married' about petitioner's activities between 1925 and 1930, and what he knew of them between 1922 and 1925 was based entirely on O'Neill's testimony and a paper not of record here. [7] Dr. Wilder at first regarded knowledge concerning what petitioner was doing between 1925 and 1930 as not essential. ”

“ Inference is capable of bridging many gaps. But not, in these circumstances, one so wide and deep as this. Knowledge of petitioner's activities and behavior from 1922 or 1925 to 1930 was peculiarly within his ken and that of his wife, who has litigated this cause in his and presumably, though indirectly, in her own behalf. ”

“ He was back in Philadelphia for five or six months or so, and he was still just evidently all right, and then he would be off.'
Lt. Col. (Chaplain) Mathews said he observed a Private Joseph Galloway, who was a prisoner for desertion and a patient in the mental ward at Fort MacArthur Station Hospital, California, during a six weeks period early in 1920. The chaplain's testimony gives strong evidence the man he observed was insane. However, there is a fatal weakness in this evidence. ”

“ The excerpt from the testimony set forth in the margin [5] shows this contrast. We also summarize below [6] other evidence which explains or illustrates the vagueness of the witness' recollection for events after 1919. O'Neill recalled one specific occasion after 1919 when petitioner returned to Philadelphia, 'around 1920 or 1921, but I couldn't be sure,' to testify in a criminal proceeding. He also said, 'After he was away for five or six years, he came back to Philadelphia, but I wouldn't know nothing about dates on that. ”

“ Tanikawa, Hawaiian-born citizen, served with petitioner from the latter's enlistment until September, 1918, when Galloway was hospitalized, although the witness thought they had fought together and petitioner was 'acting queer' at the Battle of the Argonne in October. ”

“ Essential in this is the view it had become a total and permanent disability not later than May 31, 1919.
The evidence to support this theory falls naturally into three periods, namely, that prior to 1923; the interval from then to 1930; and that following 1930. It consists in proof of incidents occurring in France to show the beginnings of change; testimony of changed appearance and behavior in the years immediately following petitioner's return to the United States as compared with those prior to his departure; the medical evidence of insanity accumulated in the years following 1930 ”

“ At Camp Greene, North Carolina, petitioner was 'just a regular soldier, very normal, * * * pretty neat.' After reaching France 'he was getting nervous * * *, kind of irritable, always picking a fight with other soldier.' This began at Aisonville. Tanikawa saw Galloway in jail, apparently before June. It is not clear whether these are references to the incident Wells described. ”