SOME CONSIDERATIONS 
UPON THE 
NAVAL RETIRING BOARD 
IX 
MEDICO-LEGAL RELATIONS. 
I>Y 
T. J. TURNER, A. M., M. IX, Pli. IX, 
MEDICAL DIRECTOR, U. S. N. 
\\ A SHI NOTON: 
GOVERNMENT PRINTING OFFICE. 
188 5. SOME CONSIDERATIONS 
UPON THE 
NAVAL RETIRING BOARD 
IN 
MEDICO-LEGAL RELATIONS. 
BY 
T. J. TURNER, A. M., M. IX, Pli. IX, 
MEDICAL DIRECTOR, U. S. N. 
WASHINGTON: 
GOVERNMENT PRINTING OFFICE. 
1885. SOME CONSIDERATIONS UPON THE NAVAL RETIRING BOARD IN 
MEDICO-LEGAL RELATIONS. 
By T. J. Turner, A. M., M. D., Ph. D., Medical Director, U. S. N. 
The u raison Metren of this paper had its origin in the writer’s duty 
connected with the Naval Retiring Board. Previous to being ordered 
upon this service, an inattentive reading of the law constituting the 
structure of the Board and in general detailing its functions led to 
the thought that the duty was simple and pateut enough, but on en- 
tering upon the work the magnitude of the interests involved, alike to 
the individual as well as the Government, the investigation needed, 
the modes of procedure, and the method by which the final results are 
to be attained, soon made it evident that a profounder study of the 
whole matter was necessary in order to faithfully and diligently perform 
the duty assigned. To do this intelligently the subject-matter had to 
be examined after the modes of my profession, for it is apparent that 
the matters involved in the retiring law include all that can be grouped 
as a medico-legal diagnosis. The Board as constituted is a specialized 
one, and has its analogues in the special juries of the English code, its 
function, also special, that of retirement, and it is to the adaptation of 
this structure to the function that it is proposed to consider. Its work is 
of such a medico-legal character that the writer was compelled to renew 
his studies in the domain of the jurisprudence of medicine, alike for his 
instruction as well as in the hope that the results of the study would be 
of service to the medical officer of the Navy upon whom in the future 
this duty may devolve. 
The positions of a medical member of the Board are, (1) that of an 
ordinary witness, (2) that of an expert witness, and (3) that of a con- 
current judge of both the facts and the law; but with the execution of 
the verdict or finding the Board has no authority whatever. In the 
first instance, medically speaking, the medical officer makes a physical 
diagnosis, and herein he has to a great degree certain standards to 
wreigh and measure—such facts as temperature, pulse, respiration, heart 
sounds, aspect, gait, deformity, &c., objective phenomena in the main; 
in the second instance, as to age, thirst, hunger, sensations, previous 
history, &c., subjective phenomena, the medical officer makes a rational 
diagnosis, and herein there is no settled standard to weigh or measure 
such facts. Combining these, he arrives at his conclusion, verdict, or 
finding. Now, the framers of the law builded better than they knew in 
the construction of the Board. A part of the evidence in any case of 
retirement is that presented after a personal physical examination, and 
becomes testimony as to matters of fact; the previous history and all 
antecedent medical history are, in a great measure, certified medical 
records, the medical-opinion testimony of the witnesses based upon 
facts observed at the time of making the record. It was an advance 
in the jurisprudence of medicine so to frame the law under considera- 
tion that, upon the entirety of the evidence, medical in character as it 
is, medical officers should be part of the tribunal. It is proposed now 4 
to enter upon such considerations as are necessary in the opinion of 
the writer to be understood before tlieir application to the law of re- 
tirement. 
On questions of science, skill, art, trade, and the like, persons in- 
structed upon such subjects-matter, alike by study or experience, or both, 
known inordinary language as “experts,” are permitted, from tlienecessi- 
ties arising in such cases when under question before the courts, to give 
“matters of opinion” in evidence, and as to the necessity which permits 
the introduction of such opinions each tribunal determines for itself at 
the time. Herein the expert differs from the ordinary witness, who testi- 
fies to “ matters of fact” coming under his personal observation. This 
distinction seems patent enough, but the boundary line where ordinary 
testimony ends and expert testimony begins is not in all cases well de- 
fined and it will be found an exceedingly difficult matter to determine. 
!Now, the definition of an expert, to bring it within the judicial ruling— 
that is to say, that permits the admission of such person’s opinion as 
evidence—is one who has skill, experience, or peculiar knowledge on cer- 
tain subjects of inquiry in science, skill, art, trade, and the like. In the 
courts, it appears to be the practice to admit any one who had a prima 
facie right to be considered as an expert. “Generally, nothing more is 
required to entitle one to give testimony as an expert than that he has 
been educated in the particular art or profession.” (Greenleaf.) 
As far as relates to opinions on medical questions any one, it appears, 
may be permitted to testify, the extent of the special amount of knowl- 
edge, no matter how acquired, being left for the jurors to determine. It 
follows from this exteusive range of so-called experts that there is no 
evidence the value of which varies so immensely, and—as it is impossible 
a priori to measure the integrity of a witness and equally so to deter- 
mine the amount both as to quantity or quality of the skill which a 
person professing a particular science, art, or trade may possess—in 
which it is so difficult to lay down rules beforehand. It undoubtedly 
must appear that a witness called in such capacity hits had some means 
of acquiring special knowledge upon the subject in question, but as to 
the means or amount of acquisition of such knowledge or the extent or 
both there can be no rule laid down. Thus a medical opinion may be 
received as evidence founded upon study without practice (State v. 
Wood, 53 H. H., 484), or by practice without study (Mason v. Fuller, 
45 Vt. 29); and it has been ruled that it is not absolutely necessary 
that one should have studied or practiced medicine (Re Toomes, 54 Cal., 
515). The legal maxim “ Cuilibet in sua arte perito est credendum” 
does not in any manner suggest either the quantity or the quality of the 
skill. This is left to tbe judges and jurymen, who are not apt to inquire 
with any great degree of accuracy into the causa scienticc, the means 
by which the expert witness has the right to form a judgment or give 
an opinion. Each tribunal from necessity forms its own judgment of 
the value due to the expert testimony upon the matters brought before 
it, and that value will vary with varying tribunals to an indefinite 
extent. Rossiter Johnson observes, “How much the value of the opin- 
ions of the expert witness as compared with the facts of the ordinary 
witness may effect each other is yet to be determined, for some men’s 
opinions are worth more than some men’s facts.” It must be constantly 
borne in mind, however, that the expert is called upon as amicus curice 
to give the benefit of his knowledge, recondite or otherwise, acquired 
by years of study and experience and observation. Sloane remarks that 
to make such knowledge of use in any given case the facts and questions 
at issue must be studied. The expert’s testimony is the result of his 5 
professional information applied to the case after a special study of it. 
It may not be ont of place here to quote from Elwell upon the duties and 
requirements of experts: “An expert is selected by the court or parties 
concerned for his supposed special knowledge or skill in particular mat- 
ters to which he is to testify or make a report embodying his opinions. 
These opinions or conclusions of judgment which make up such opin- 
ions of experts are the same in substance as the verdict of a jury or 
judgment of a court.” He further observes that although the facts upon 
which the opinion is based may be called for, yet from the very nature 
of the case it is not to be expected that the jury or court will understand 
them. Now, the opinions of medical men are admitted in the courts— 
(1) Upon the condition of the human system. Thus, is or was a cer- 
tain person sick. (Lush v. McDaniel, 4 Ired., 485.) 
(2) The nature and cause of disease. (McLean t. State, 16 Ala., 672.) 
(3) The cause of death. (Lord v. Beard, 79 N. C., 5.) 
(4) The cause or effect of an injury. (Taylor v. Bail way, 48 N. H., 
304.) 
(5) The effect of a medicine or particular treatment. (Hoard v. Peck, 
43 Miss., 472; Barber v. Merriam, 11 Allen, 322.) 
(6) The likelihood of recovery. (Matteson v. N. Y. Cent. B. B. Co., 
62 Barb., 364.) 
(7) The mental condition of the person. (State v. Hayden, 51 Vt., 
296, et al.) 
(8) Upon an examination of the party whose condition is under in- 
quiry. (Bitner v. Bitner, 65 Pa. St., 347.) 
And under these groupings all of the wounds, injuries, casualties, 
and disabilities arising from disease or exposure which are the subjects 
of professional study in the naval service can readily be distributed. 
It is the writer’s opinion that the term “expert testimony” is a some- 
what misleading one, and he prefers the term “opinion evidence,” as 
used by Best, as preferable; for opinions may be admitted as evidence by 
those who could not by any mental admeasurement known be classed 
as “expert.” It is assumed that every medical man is ipso facto an 
expert and qualified to give an opinion upon all matters relating to his 
profession. That this assumption is unqualifiedly not so is self-evident to 
members of the profession, and it does not require much of demonstration 
to render such fact plain to the mind of the intelligent layman. The facts, 
in the opinion of the writer, that should be primarily determined antece- 
dent to the admission of opinion evidence are—for it is an error to allow 
a witness to testify as an expert without preliminary examination as to 
his qualifications (State v. Secrest, 80 N. C., 450)—has the so-called 
expert had more than the usual amount of opportunities to observe such 
matters as he is expected to give an opinion upon, or has he any special 
knowledge of the matters in inquiry so as to give relevant answers to 
the questions presented for his consideration ? With these opportuni- 
ties granted, what use has been made of them, or to what extent has 
been the course of reading or study in the direction of the inquiry, 
opportunities for observation or experience being absent? It is at once 
admitted that herein are presented matters that cannot well be reduced 
to a common measure. Much must be left to the powers of judgment 
of those to whom the opinion evidence is to be presented. The test 
of the admissibility of opinion evidence seems to the writer to be this: 
Has the expert witness any peculiar knowledge or experience, not com- 
mon to the world, which renders his opinion, founded upon such knowl- 
edge or experience, upon the subject-matter under inquiry of value to 
the court in determining the truth of the matters at issue? It is beyond 
question that the degree of credence given to opinion evidence should 6 
be founded upon and associated with the professional skill, the quick- 
ness of perception, the power of discernment, the aptitude, the {require- 
ments, the education, as well as the experience and observation of “the 
expert” in matters upon which questions demanding his special expert 
knowledge arise. And this degree of credence will vary with the esti- 
mate made by the court of the ability of the expert, the which he should 
be abundantly able to exhibit beyond doubt or misgiving, as well as to 
enforce the conviction of the truth of his opinions to all concerned. 
Bunsby could give “ an opinion as is an opinion,” which would have a 
zero value by the side of one presented by Luce, upon nautical matters; 
yet both would be classed as experts upon the art and mystery of the 
mariner. Bearing these suggestions and rules in mind, as well as that 
opinion is not evidence without assigning reason for such opinion, each 
case demanding medical-opinion evidence becomes a problem to be 
solved by their application, and the paper is presented to his corps in 
the Navy as the result of some study, reading, work, and experience 
for their use. It may not be out of place here to call attention that 
the facts herein set forth have a practical association with the duties 
imposed upon medical officers of the Navy both by law and regulation, 
to wit, in the records of cases in medical journals, reports of medical 
surveys, certificates of death, abstracts, hospital tickets, records of 
physical examinations, and in all records that may involve claims for 
pension. With this introduction, we are prepared to enter upon the 
application of these general rulings to the consideration of the Naval 
Retiring Board considered in its medico-legal relations. 
RETIREMENT. 
Sec. 1448. Whenever any officer, on being ordered to perform the duties appropriate 
to his commission, reports himself unable to comply with such order, or whenever, in 
the judgment of the President, an officer is incapacitated to perform the duties of his 
office, the President, at his discretion, may direct the Secretary of the Navy to refer 
the case of such officer to a Board of not more than nine nor less than five commis- 
sioned officers, two-fifths of whom shall be members of the Medical Corps of the Navy. 
Said board, except the officers taken from the Medical Corps, shall he composed, as 
far as may be, of seniors in rank to the officer whose disability is inquired of. (3 Aug., 
1861, s. 23, v. 12, p. 291.) 
Sec. 1449. Said Retiring Board shall be authorized to inquire into and determine the 
facts touching the nature and occasion of the disability of any such officer, and shall 
have such powers of a court-martial and of a court of inquiry as may be necessary. 
(3 Aug., 1861, s. 17, v. 12, p. 290.) 
Sec. 1450. The members of said Board shall be sworn in each case to discharge their 
duties honestly and impartially. (3 Aug., 1861, s. 23, v. 12, p. 291.) 
Sec. 1451. When said Retiring Board finds an officer incapacitated for active service, 
it shall also find and report the cause which, in its judgment, produced his incapacity, 
and whether such cause is an incident of the service. (Idem.) 
Sec. 1452. A record of the proceedings and decision of the Board in each case shall 
be transmitted to the Secretary of the Navy, and shall be laid by him before the 
President for his approval or disapproval, or orders in the case. {Idem.) 
[Notes.—No power of review over the proceedings of a Retiring Board exists by 
law where its finding has been once approved by the President and his “orders in the 
case” executed.—Op. XV, p. 446. Devens, Feb. 8, 1878. Rodney’s case. 
Where a naval Retiring Board, convened to inquire into the nature and cause of the 
disability of an officer has once finished its work, rendered a complete judgment in 
the case, and adjourned, a subsequent reconsideration of its judgment by the board, 
unless authorized or directed by proper authority, can have no legal effect.—Op. XVI, 
p. 104. Devens, July 25, 1878. Rodney’s case.] 
Sec. 1453. When a Retiring Board finds that an officer is incapacitated for active 
service, and that his incapacity is the result of an incident of the service, such offi- 
cer shall, if said decision is approved by the President, be retired from active service 
with retired pay, as allowed by Chapter Eight of this Title. (3 Aug., 1861, s. 23, v. 
12, p. 291.) 
Sec. 1454. When said Board finds that an officer is incapacitated for active service 
and that his incapacity is not the result of any incident of the service, such officer 7 
shall, if said decision is approved by the President, be retired from active service on 
furlough pay, or wholly retired from service with one year’s pay, as the President 
may determine. (See Aug. 5, 1882, ante.) 
Sec. 1445. The two preceding sections shall not apply to any lieutenant-commander 
lieutenant, lieutenant of the junior grade, ensign, passed assistant surgeon, passed assist- 
ant paymaster, passed assistant engineer, assistant surgeon, assistant paymaster, or 
assistant engineer; and such officers shall not be placed upon the retired list, except 
on account of physical or mental disability. (15 July, 1870, s. 6, v. 16, p. 333. 24 Feb., 
1874, v. 18, p. 17. 3 March, 1883, P. E. L., p. 472.) 
Whenever on an inquiry had pursuant to law, concerning the fitness of an officer of 
the Navy for promotion, it shall appear that such officer is unfit to perform at sea the 
duties of the place to which it is proposed to promote him, by reason of drunkenness, 
or from any cause arising from his own misconduct, and having been informed of and 
heard upon the charges against him, he shall not be placed on the retired list of the 
Navy, and if the finding of the board be approved by the President, he shall be dis- 
charged with not more than one year’s pay. [See § 1456.] (Aug., 1882, P. E. L., p. 
286.) 
Sec. 1455. No officer of the Navy shall be retired from active service, or wholly 
retired from the service, without a full and fair hearing before such Navy Eetiring 
Board, if he shall demand it, except in cases where he may be retired by the Presi- 
dent at his own request, or on account of age or length of service, or on account of 
his failure to be recommended by an examining board for promotion. 
Such are the sections of Title XV, Chapter 3, of the Revised Statutes 
of the United States, together with that part of the act of Congress 
approved August 5, 1882, which defines the structure of the Xaval Re- 
tiring Board, and in a general manner details and indicates its functions 
when organized. 
The sections have been arranged in their natural sequence and will 
be in that manner considered. 
It is to be observed in the terms of the law, section L448: 
(1) When any officer, on being ordered to perform the duties appropriate to his com- 
mission, reports himself unable to comply with such order; 
(2) Or whenever, in the judgment of the President, an officer is incapacitated to 
perform the duties of his office, the President, at his discretion, may direct the Sec- 
retary of the Navy to refer the case of such officer to a Board of not more than nine 
nor less than five commissioned officers, two-fifths of whom shall be members of the 
Medical Corps of the Navy. 
(3) Said Board, except the officers taken from the Medical Corps, shall be composed 
as far as may be, of seniors in rank to the officer whose disability is inquired of. 
And here it is well to have a distinct understanding of the meaning 
of the terms to which attention is to be called; thus: 
Unable: Not able. 
Incapacitated: Inability to discharge a duty or to fill an office. 
Disability: The state of being disabled. 
Practically the words are of equal value and are synonymous with 
incapacitated. 
It is apparent that these terms have no other reference or association 
save with physical condition, as a whole, of the officer ordered to appear 
before the Board. 
It is also evident that the inquiry being one as to physical incapacity, 
a special knowledge is required to determine such incapacity; that is to 
say, medical skill and experience, study and observation are necessary, 
and from these facts the inquiry falls under the cognizance of the med- 
ical-opinion evidence of the medical members of the Board. 
Again, as the purpose of this paper is to show the medico-legal rela- 
tions involved in the law, it is proper to show these relations in connec- 
tion with the terms already defined, thus: 
Unable to comply with such order. 
Incapacitated to perform the duties of his office. 
Disability inquired of. 
It does not require any profound degree of logical acumen to deter- 8 
mine that, apart from each other, the facts, as stated, would reduce the 
retiring law to an absurdity. It is the opinion of the writer that the 
whole question of retirement belongs to the domain of the jurisprudence 
of medicine, and the facts upon which this opinion is founded will be 
presented in this paper. 
To resume: 
Section 1449. The case of such officer having been referred to a 
Board composed as stated in the preceding section, “ said Betiring 
Board shall be authorized to inquire into and determine the facts touch- 
ing the nature and occasion of the disability of any such officer.” 
That no term in the law shall be misconstrued, it is proper here to de- 
fine Fact—a thing done; a circumstance, event, or occurrence. 
To comply with the requirements of this section involves: 
(1) The personal physical examination of the officer for the purpose 
of determining if such officer is incapacitated and the nature of the in- 
capjacity if any such exists. The facts ascertained upon this examina- 
tion place the examiners within the category of those known to jurists 
as expert witnesses. 
Thus the medical officers upon whom this duty falls discover that 
certain physical phenomena exist in the person of the officer; these 
they group. This grouping indicates that the phenomena are con- 
nected with changes in some one of the systems of the body, the special 
organ or system is singled out to which the aberrations are referred and 
the cause determined. 
The whole matter is one of physical diagnosis, plus the etiology of 
the incapacity. The facts demonstrate that A is sick, the opinion that 
he has a specified affection ; that he is unable to perform the duties of 
his avocation, and that his sickness resulted from some cause, either 
proximate or remote, predisposing or exciting, are all within medical 
cognizance. 
(2) An examination into the record and documentary evidence com- 
prising the past medical history of the officer obtained from the files of 
the Bureau of Medicine and Surgery and from all other authentic sources. 
The facts obtained upon this examination are the facts and opinions 
of medical officers and others having had special knowledge of the sub- 
ject. 
To group these matters so as to present them in a proper and legal 
manner, the practice is as follows : 
The presiding officer addresses the following letter to the medical 
members of the Board: 
Naval Retiring Board, 
Navy Department, 
Washington, , 188-. 
Gentlemen : You will be pleased to make a careful examination into the past and 
present physical condition of , U. S. Navy, whose case has been referred 
to this Board for examination, and report as to his capacity to perform the duties ap- 
propriate to his commission, in conformity with Title 15, Chapter 3, of the Revised 
Statutes of the United States. 
Besides a personal examination, you will examine, closely, the records on file at the 
Bureau of Medicine and Surgery, and obtain careful copies of the records which bear 
on the case; and also endeavor to obtain from any other authentic source within 
your reach such information as will aid the Board in the performance of their duties, 
and report the result in writing. 
Very respectfully, 
To- 
and President of the Board. 9 
Upon the presentation of the report called for, it is made testimony 
by being admitted under oath or affirmation. 
Now, the inquiry having been made and the facts determined, the 
nature of the incapacity is described, and its occasion, in so far as can 
be ascertained from all sources, narrated. To do all this involves the 
facts and opinions of the medical witnesses. Not only are the medical 
officers of the Board called upon to testify to the special facts as gath- 
ered by the evidence of their senses at the personal physical examina- 
tion, but they are to give the deductions, drawn from the facts given 
by others. Having all these before them, they are to apply to the whole 
group their special or expert knowledge ; from these reach a conclusion 
in their own minds, and so present their opinion. No more decided 
rule can be observed here than that proposed by Sawyer in speaking of 
medical witnesses : 11 He should listen attentively to the testimony as 
to all the facts of the case and avail himself of every authentic means 
of forming a correct opinion.” 
Again, section 1451: 
(1) When said retiring board finds an officer incapacitated for active service. 
(2) It shall also find and report the cause which in its judgment produced his inca- 
pacity, 
(3) And whether such cause is an incident of the service. 
To perform all th6 duties in active service requires a sound mind in a 
sound body. Every advancement of promotion is preceded by a physical 
examination, and these are matters of record in so far as measurements 
by physical instruments can determine the sum total of mental vigor 
with physical endurance. It is not a part of this paper to describe in 
detail the various special conditions that incapacitate an officer for act- 
ive service. Each case has its own environment and is a law unto itself. 
Prominently, defects in any of the various systems, pathological con- 
ditions involving grave structural or functional changes in any one 
or more systems, the rapidity of the senile atrophic changes, all tend to 
incapacitate for active service. Acute affections and even some chronic 
disorders for the time being incapacitate, but due regard is had to the 
temporary or permanent nature of the incapacity. The endeavor in 
each case is to determine the prognosis as far as it possibly can be so 
determined. The nature of the incapacity must be such as to perma- 
nently disable an officer from performing all his duties. The clause 
also has its medico-legal aspect—the incapacity being the medical, for 
active service the legal side. Much is left to the judgment of the medi- 
cal officer from the very necessities of the case. 
The second clause in the section opens up the'whole field of etiology 
or causation. Some of the causes of incapacity are at once evident; 
others become so by association with duties performed. Exposure on 
shipboard within geographic limits; proximate, remote, exciting and 
predisposing causes, the mode of life, climate, special duties; the se- 
quences of diseases, &c., are all to be considered in the phenomena 
of the causation of the production of incapacity. Time, place, and cir- 
cumstance—in fact the whole surroundings—must be considered, and 
the facts so obtained interpreted by judgment. 
The third clause, “ and whether such cause is an incident of the 
service.” 
The words “ an incident of the service” in a general manner indi- 
cate that which is liable to happen, that which pertains to, is depend- 
ent upon, is related to—an occurrence, an event, casualty, or condition 
of things. Here again the medico-legal bearing of the law becomes 
evident and does not need to be demonstrated, for the previous applica- 10 
tion of the facts apply with like force and weight. Much confusion, it 
may be here stated, has arisen in the minds of persons having to deal 
with the retiring law by making the very natural association of these 
terms with those of “ in line of duty.” That there is an association is 
not to be questioned, but that they are to be considered apart is also 
evident. 
Thus far the presentation of the case has been made by the medical 
members of the Board, but in nowise does this limit or impair the right 
of the officer appearing before the Board to traverse the case as so pre- 
sented in its entirety. In many instances where the record evidence 
is imperfect it has to be supplemented, and facts known only to the offi- 
cer which may have a direct or indirect bearing in his case are within 
his province to produce before the Board. 
Under all circumstances “a full and fair hearing” (section 1455) is 
sought to be obtained, and then only upon all the facts and opinions 
presented is the deliberate judgment of the whole board set forth. 
The subject of this paper, it is assumed, has been demonstrated. In 
closing, with the mind of the writer reverting to the words “an inci- 
dent of the service,” there is recalled the broad and liberal views as 
thus set forth by the late Attorney-General Richard Rush: 
Such are the changes and uncertainties of the military life, such oftentimes its 
trials as well as its hazards, that the seeds of disease, which finally prostrate the con- 
stitution, may have been hidden as they were sown, and thus be in danger of not 
being recognized as first causes of disability. 
(References: Best on Evidence, Greenleaf on Evidence, Stephens on 
Evidence, Ram on Facts, Bur rill’s Law Dictionary, Ordronaux’s Juris- 
prudence of Medicine, Guy’s Forensic Medicine, Sawyer on Expert 
Testimony, Lawson, Expert and Opinion Evidence.)