Berry v. United States, 265.
| Decision Date | 29 April 1940 |
| Docket Number | No. 265.,265. |
| Parties | BERRY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Joseph A. McNamara, U. S. Atty., of Burlington, Vt., and Julius C. Martin, Director, Bureau of War Risk Litigation, Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and Keith L. Seegmiller, Atty., Department of Justice, all of Washington, D. C., for appellant.
Ernest W. Gibson, Jr., and F. Elliott Barber, Jr., both of Brattlesboro, Vt., for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
This is an appeal from a judgment entered upon the verdict of a jury in an action upon a policy of war risk insurance. The only substantial question is whether there was evidence on which a jury might find that the plaintiff was permanently and totally disabled on September 1, 1919. He was a farmer, born in Vermont in 1892, and served in the army in France during the Great War. In June of 1918, while standing guard in the front line, a shell burst close to him and wounded him in several places. He was ordered to a dugout until the shelling stopped, so that he could go back to a "first-aid station", and while waiting there, another shell exploded in front of the door. This killed several of the men in the dug-out, and nearly severed the plaintiff's left leg. He was finally brought to a hospital where the leg was amputated between five and six inches below the knee, and where his other wounds were dressed. He was shipped back home in August and arrived at Boston in September. He was in two hospitals until about Christmas, at which time a temporary artificial leg was given him, on which he could do some walking. After his discharge on January 2, 1919, the stump continued to trouble him; apparently the operation had not been well done, and it was never found possible to furnish him with an artificial leg that would prevent boils and abscesses from breaking out after he had stood upon it for three days or more. The Veteran Administration recognized that he was very heavily handicapped in earning capacity, and offered him vocational training. He had had some acquaintance with photography before he went into the army, and they gave him training in that — not at his own choice, as he said, but at theirs. He finished the course in November, 1919, and in January, 1920, was offered a "retouching job" in Boston. This he gave up after a trial of an hour and a half, giving as the reason that his hand shook too much. A jury might have found that his experiences in the war had unsettled his nervous system so much that he could not do "retouching", but it does not appear that he could not have been successful in other branches of photography which he never tried. Certain it is that he was neurasthenic, and had uncontrollable accesses of terror at any explosion, or even during thunder-storms.
He did no work for about a year, though he made several efforts; his inability being chiefly due to the condition of his leg, which had to be operated upon once more in the spring of 1920. It had measurably healed by July and he did some intermittent work during the rest of that year. In January of 1921, the authorities gave him a new course in vocational training as an automobile or garage mechanic; this was at his own insistence, and against their advice, since the condition of his leg made it unlikely that he could stand for as long as such work required. The "statistical report" of the Veterans' Bureau, which was not effectively discredited, shows that from February, 1921, to April 15, 1923, he was employed more than twenty-six months in all, losing therefore not much more than one. This completed his training, and he worked on his own for about six months more, say till November, 1923, when he abandoned this calling because of his infirmity. A jury might have found that it required more standing than he was capable of, and that he was therefore unfitted for it.
In the spring of 1924 he got possession of a small dairy farm where with his wife he worked from 1924 to 1928. He did some of the work about the place, but she and a hired man did the greater part, and they sold on an average about thirteen dollars a month of milk, cream and butter fat. It does not appear that he did not contribute appreciably to the work. In addition during this period he set up a small garage with one, Orcutt, and later, after he had lost his farm, a second garage in the autumn of 1928, with one, Bishop; both of these had failed by the end of 1929, his explanation for the second being that he could not do enough work himself, or be "around" to keep an eye on the business. From the middle of February, 1930, to the end of that year, he...
To continue reading
Request your trial
-
Keller v. Brooklyn Bus Corporation
...for trying facts in courts of law." Berry v. United States, 312 U.S. 450, 452, 453, 61 S.Ct. 637, 638, 85 L.Ed. 945, reversing 2 Cir., 111 F.2d 615; Conway v. O'Brien, 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed. 969, reversing 2 Cir., 111 F.2d 611; Gunning v. Cooley, 281 U.S. 90, 95, 50 S.Ct. 231,......
-
Berry v. United States
...to show that he became totally and permanently disabled prior to September 1, 1919. This variance in dates is not material, however. 2 2 Cir., 111 F.2d 615. 3 Compare Conway v. O'Brien, 2 Cir., 111 F.2d 611, 613, reversed this day, 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed. —-, with Pruitt v. Har......
-
Globe Liquor Co. v. San Roman
...Pulp & Paper Co. v. Cone, 4 Cir., 153 F.2d 576, 581, 582; United States v. Halliday, 4 Cir., 116 F.2d 812, 815, 816; Berry v. United States, 2 Cir., 111 F.2d 615; Conway v. O'Brien, 2 Cir., 111 F.2d 611, The judgment of the District Court is reversed, and the cause is remanded with directio......
-
Kelly v. Johnston, 9258.
... ... , was indicted on September 21, 1932, in the District Court of the United States for the Northern District of California for robbing a person having ... ...