United States v. Gower, 422.

• Decision Date: 29 May 1931
• Docket Number: No. 422.,422.
• Citation: 50 F.2d 370
• Parties: UNITED STATES v. GOWER et al.
• Court: U.S. Court of Appeals — Tenth Circuit

50 F.2d 370 (1931)

UNITED STATES v. GOWER et al.

No. 422.

Circuit Court of Appeals, Tenth Circuit.

May 29, 1931.

C. L. Dawson, Atty., U. S. Veterans' Bureau, of Washington, D. C. (Jno. M. Goldesberry, U. S. Atty., and A. E. Williams, Asst. U. S. Atty., both of Tulsa, Okl., and William Wolff Smith, General Counsel, U. S. Veterans' Bureau, of Washington, D. C., on the brief), for the United States.

Glenn O. Young, of Sapulpa, Okl., for appellees.

Before LEWIS, and COTTERAL, Circuit Judges, and POLLOCK, District Judge.

LEWIS, Circuit Judge.

Claude Gower, a soldier in the World War, was discharged from service on June 3, 1919, and immediately returned to his father's home in Oklahoma. He sought employment of different kinds, but after short service in each he in turn quit because he could not continue on account of his physical and mental condition. Early in November, 1919, he was accidentally and fatally shot. While in the military service two policies of term insurance of $5,000.00 each were issued to him on which premiums were paid to July 31, 1919.

His father and mother, appellees here, brought this suit on the policies as beneficiaries and recovered. They alleged that their son suffered total permanent disability during the life of the policies. The defendant below has appealed and contends that the verdicts are not sustained by the proof, hence the court erred in overruling defendant's motion for an instructed verdict in its favor; that the case should not have been submitted to the jury. That is the only error assigned, and the argument here is that the evidence does not sustain a finding that the insured suffered total permanent disability while the policies were in force.

On that subject Doctor King, who had practised medicine for twenty-five years and had served as physician in the Medical Corps of the United States Army, was called as a witness. He saw and treated the insured twice a week for three or four weeks after his return home from military service. He testified that the physical and mental condition of Gower was very poor. He had a rapid heart, listless expression, undernourished condition, both lungs abnormal, and more or less adema of the hands and face; that from the history of the case he determined that the patient was suffering from gas poison, and that in his opinion he was not able to perform any substantial and gainful work; that while he was attending him he did not improve to amount to anything. He would have spells like asthma. When asked as to whether Gower might have recovered had he not been accidentally shot, witness said he had a chance to get well. Asked whether or not his condition was permanent, he answered, "No, Sir"; and asked whether he was able to say his condition was temporary, he answered, "No, Sir."

Members of insured's family and others for whom he tried to work described his condition, action and inability to continue except for very brief periods at different kinds of labor. A grocer who employed him to deliver groceries in the town testified that when he would direct him to go to one part of town, he would go to another part, and he would have to go or send someone after him; that his mind seemed to wander; he kept trying to get him to work for some eight or ten days; that he was flighty and trembly, would give out and sit down. He tried other employment. He shucked corn for a day or so, and quit because he was sick. His appetite was poor, and he didn't sleep much. He tried to work in the cane...