63 F.2d 965 (10th Cir. 1933), 741, United States v. Alberty

• Docket Nº: 741.
• Citation: 63 F.2d 965
• Party Name: UNITED STATES v. ALBERTY.
• Case Date: March 27, 1933
• Court: United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 965

63 F.2d 965 (10th Cir. 1933)

UNITED STATES

v.

ALBERTY.

No. 741.

United States Court of Appeals, Tenth Circuit.

March 27, 1933

Appeal from the District Court of the United States for the Northern District of Oklahoma; Franklin E. Kennamer, Judge.

Lawrence A. Lawlor, Atty., Veterans' Administration, of Washington, D. C. (John M. Goldesberry, U. S. Atty., and A. E. Williams, Asst. U. S. Atty., both of Tulsa, Okl., and David G. Arnold, Atty., Veterans' Administration, of Washington, D. C., on the brief), for the United States.

R. A. Wilkerson, of Pryor, Okl. (Ernest R. Brown, of Pryor, Okl., on the brief), for appellees.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

PHILLIPS, Circuit Judge.

This action was brought by William T. Alberty to recover on a policy of war risk insurance. Trial by jury was waived and the case tried to the court.

In the original petition it is alleged that Alberty was inducted into the Army on September 22, 1917, and honorably discharged on June 22, 1919; that shortly after entering the Army he applied for and was granted a policy of war risk insurance; that while said insurance contract was in full force and effect he became totally and permanently disabled. As evidence of disagreement, there was attached to the petition a letter

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from the Veterans' Bureau, dated October 9, 1930, to Alberty's attorneys, Wilkerson & Brown. This letter in part reads as follows:

'Re: Alberty, William T.

'C-349-479.

'This is in further reference to claim for benefits of insurance, filed in the above captioned case.

'After careful review and consideration it has been determined that for insurance purposes, permanent and total disability is not shown by the evidence to have existed from the date of his discharge from service. Under the above decision, therefore, the benefits must be claimed by the United States Veterans' Bureau.

'This letter is accordingly evidence of a disagreement under Section 19 of the World War Veterans' Act 1924 as amended.'

At the trial, the evidence developed that when Alberty was discharged from the Army he had pains in his back and legs; that he tried to work but was unable to do so; that on September 30, 1919, he became totally paralyzed in his right leg. Proof also established that during the months of August and September there was unpaid...