Barksdale v. United States, 302.

• Decision Date: 05 January 1931
• Docket Number: No. 302.,302.
• Citation: 46 F.2d 762
• Parties: BARKSDALE v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

46 F.2d 762 (1931)

BARKSDALE v. UNITED STATES.

No. 302.

Circuit Court of Appeals, Tenth Circuit.

January 5, 1931.

S. R. Owens, of Denver, Colo. (Joseph P. O'Connell, of Denver, Colo., of counsel), for appellant.

Ralph L. Carr, U. S. Atty., of Denver, Colo., John G. Reid, Asst. U. S. Atty., of Hugo, Colo., and William Wolff Smith, Gen. Counsel, U. S. Veterans' Bureau, and Bayless L. Guffy, both of Washington, D. C., and Richard A. Toomey, of Denver, Colo., Atty., Veterans' Bureau.

Before PHILLIPS and McDERMOTT, Circuit Judges, and POLLOCK, District Judge.

POLLOCK, District Judge.

This action was brought by plaintiff, Leslie Barksdale, to recover on a reinstated contract of war-risk insurance. It is alleged in the petition that this contract of insurance was in full force and effect on January 31, 1921; that on or before that date plaintiff had become and was totally and permanently disabled from following any gainful occupation or employment. The trial was had before the court and a jury. At the close of the evidence for plaintiff, the court, on motion of the defendant, directed a verdict in its favor. The correctness of this ruling constitutes the single ground of error complained of on this appeal.

The question presented by this record was this: Did the evidence produced by the plaintiff on the trial tend to show on or before January 31, 1921, plaintiff had, from any impairment of his mind or body, become permanently and totally disabled from following continuously any substantially gainful occupation? As the ruling on this question was made at the conclusion of plaintiff's evidence, and not at the conclusion of all the evidence in the case, all that was brought before the trial court was, Did the evidence adduced by plaintiff make out a prima facie case in his behalf? A review of this evidence found in the record shows as follows:

That he was suffering from a skin disease known as onychia, which caused an enlargement or thickening of the finger nails and toe nails, and a chafed condition of the face and hands; that he was also suffering from brachial neuritis of the left arm and shoulder, resulting in a wasting of the muscles of the left arm and shoulder and a weakening of the left hand and arm; that the onychia had existed since 1917 and was incurable; that the condition of the left arm and shoulder had existed since 1917 and was growing worse.

Plaintiff further testified that he served in the army from June 24, 1916, until April 12, 1919; that while in the service he suffered an attack of "flu," which left him with a throat and lung affection, from which he had not fully recovered; that he enlisted in the Marines on May 26, 1919, and was discharged on account of disability July 15, 1919; that he then went back to his home in Memphis, Tenn. and secured employment with the Lytile Electrical Company of Memphis, for which he continued to work for about six or eight months, and due to illness he was unable to work more than two days out of three; that he went to the Veterans' Bureau Hospital at Alexandria, La., and remained in the hospital from May 10, 1920, to April 23, 1921; during that period he was operated upon three times, once for hernia, once for the removal of his tonsils, and once for the removal of his appendix; that after his discharge from that hospital he returned to his home in Memphis, and then went to Pascagoula, Miss., and entered vocational training; that he remained there in training from June 8, 1921, until July of that year; about July 20, 1921, he went to the hospital at Johnson City, Tenn., having been sent there by the Veterans' Bureau for treatment of jaundice and also for treatment of lung and stomach conditions; that he left Johnson City April 21, 1922, and came to Las Cruces, N. M., for treatment for lung trouble and for vocational training; he remained at Las Cruces about three months, and was then sent to Denver; he remained in vocational training about two months, and was then transferred to Northern Wyoming for further vocational training; during his stay in Wyoming he was ill about half of the time, and on May 10, 1923, he was transferred to Fitzsimons General Hospital at Denver, and remained there until March 3, 1925, where he was treated for stomach and skin conditions; he was transferred from Fitzsimons General Hospital in 1925 to the Walter Reid...