Dolblestis v. United States, 6687.

• Decision Date: 22 March 1939
• Docket Number: No. 6687.,6687.
• Citation: 101 F.2d 900
• Parties: DOLBLESTIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

101 F.2d 900 (1939)

DOLBLESTIS v. UNITED STATES.

No. 6687.

Circuit Court of Appeals, Seventh Circuit.

February 3, 1939.

Rehearing Denied March 22, 1939.

Edward H. S. Martin and John B. King, both of Chicago, Ill., for appellant.

Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Fendall Marbury, Sp. Asst. to Atty. Gen., and Michael L. Igoe, U. S. Atty., and William M. Lytle, Atty., Department of Justice, both of Chicago, Ill., and Young M. Smith, of Washington, D. C., for the United States.

Before EVANS, SPARKS, and TREANOR, Circuit Judges.

SPARKS, Circuit Judge.

This is an appeal from a judgment on a verdict directed in favor of the Government in a suit to recover under a policy of war risk insurance. Appellant assigns as error the directing of the verdict and the exclusion of certain lay evidence offered by him as to his inability to work and his inability to follow his prewar occupation.

Appellant was drafted into the military service April 25, 1918, and honorably discharged therefrom January 13, 1919. Over twelve years later, on June 27, 1931, he filed a claim for benefits under a $10,000 war risk insurance policy which expired March 3, 1919, unless prior to that date it matured by reason of appellant's total and permanent disability, as he alleged, resulting from the following ailments and diseases: Arthritis; heart trouble; pes planus (flat foot); psychoneurosis; neurasthenia; varicose veins in both legs; rheumatism; hallux valgus (bunion); anterior metatarsalgia; general weakness and general disability.

Since the case comes to us on the direction of a verdict, we have before us only the question whether or not there was any substantial evidence admitted or offered which would have warranted a verdict in appellant's favor.

Appellant introduced two medical witnesses, both of whom had examined him for the first time in the latter part of 1935. One testified that appellant walked with a slight limp and looked as if he were suffering from an arthritic condition; that he found his heart and lungs negative; that there were conditions of overgrowth of the metatarsal bones; that he found no swelling of the ankles. The second, not a specialist in heart diseases, testified that he found that appellant had an old myocarditis and endocarditis, both severe; that he had swelling in his ankles which he attributed to the heart condition; that he tired very easily, but that his heart condition was compensated; that his activities were limited, but the witness "could not say if he could go around if he took care of himself and engaged in normal light activities." Here, surely, is no picture of a man physically incapacitated from doing any kind of work. Neither physician testified as to the psychoneurosis or neurasthenia included in appellant's...