Falbo v. United States, 6965.
| Decision Date | 02 June 1933 |
| Docket Number | No. 6965.,6965. |
| Parties | FALBO v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Graham K. Betts, of Seattle, Wash., for appellant.
H. E. Ray, U. S. Atty., and Sam S. Griffin, W. H. Langroise, and Ralph R. Breshears, Asst. U. S. Attys., all of Boise, Idaho.
Before WILBUR, SAWTELLE, and MACK, Circuit Judges.
Appeal from judgment for defendant on a directed verdict in an action on a war risk insurance certificate in force by payment of premiums until May, 1919.
1. Under our decision in Straw v. United States, 62 F.(2d) 757 (1933), jurisdiction is clear; a letter from the Bureau's general counsel advising claimant that the Director has denied his claim is prima facie proof of statutory prerequisite to suit, a disagreement as defined in the Act of July 3, 1930, c. 849, § 4, 46 Stat. 998, 38 USCA § 445.
2. The only substantial question is whether or not the court erred in directing a verdict for want of any substantial evidence that plaintiff was permanently disabled in May, 1919, when the policy would otherwise have lapsed.
The evidence may be briefly summarized as follows: Plaintiff entered the Army in June, 1918; before going overseas he was hospitalized for several weeks on account of measles. Then he spent a month or two in Belgium quartered in an old barn, "usually wet and damp." During that time he was in the front lines for several days in rainy weather, without change of clothes. From Belgium he was sent to France, thence home. While in Belgium he suffered from a painful cough, night sweats, pain across the shoulders and general weakness. Since that time he has never been a well man.
After his discharge, in April, 1919, he worked for over four months for a lumber company, loading lumber; thereafter he was employed for about a year in a match factory and for another year in a sawmill. In 1922 he entered a hospital, and except for two short intervals has been in hospitals ever since. While employed he received the same pay as other men doing the same work, averaging roughly between 40 and 50 cents an hour.
Although he had a hemorrhage after a 4th of July celebration in 1919, he did not see a doctor until March, 1920. This doctor testified that he then diagnosed plaintiff's condition as acute pulmonary tuberculosis, that it was then of six to eighteen months' duration, and that the condition was progressive thereafter; further, that he had instructed plaintiff to rest, but that his economic situation prevented this.
Another physician who had treated him in a hospital in 1922 likewise testified to the tubercular condition and the strong probability that he had tuberculosis before the hemorrhage of July, 1919.
While, on this evidence, a finding of total disability in May, 1919, and of permanent disability at a much later period, would be justified, we concur in the judgment of the District Judge that it fails to show a condition of permanent disability in May, 1919, a disability then "reasonably certain to be permanent during lifetime." United States v. McCreary, 61 F.(2d) 804, 808 (C. C. A. 9, 1933). The burden of proof is on the plaintiff; "it is not carried by leaving the matter in the realm of speculation." United States v. Rentfrow, 60 F.(2d) 488, 489 (C. C. A. 10, 1932). The testimony of plaintiff's physician in answer to questions by the court indicates the speculative character of the evidence on this material point.
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