Green v. United States, 9237.

• Decision Date: 22 March 1932
• Docket Number: No. 9237.,9237.
• Citation: 57 F.2d 9
• Parties: GREEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

57 F.2d 9 (1932)

GREEN v. UNITED STATES.

No. 9237.

Circuit Court of Appeals, Eighth Circuit.

March 22, 1932.

Charles L. Graham, of Carrollton, Mo., for appellant.

A. B. Lovan, Asst. U. S. Atty., and Vergil E. Willis, Ins. Atty., Veterans' Administration, both of Kansas City, Mo. (William L. Vandeventer, U. S. Atty., of Kansas City, Mo., and William Wolff Smith, Sp. Counsel, Veterans' Administration, and C. L. Dawson, Atty., Veterans' Administration, both of Washington, D. C., on the brief), for the United States.

Before STONE and BOOTH, Circuit Judges, and WYMAN, District Judge.

BOOTH, Circuit Judge.

This is an appeal from a judgment in favor of defendant in a war risk insurance case. The action was brought by the administrator de bonis non. A jury was duly waived, and the case was tried to the court. At the close of plaintiff's case, the defendant demurred to the plaintiff's evidence and moved for judgment in favor of defendant. The court granted the motion.

Among the main facts admitted by the pleadings or on the trial were the following: The deceased, Arthur W. Green, enlisted April 29, 1918; was discharged June 11, 1919. His war risk insurance policy lapsed July 31, 1919. He became totally blind in 1926. The action was first brought by Arthur W. Green. After his death it was revived by his representative. Disagreement as to the right of recovery was also duly admitted.

The sole question in the case, as admitted by counsel and as stated by the court, was whether Arthur W. Green was totally and permanently disabled on and prior to July 31, 1919.

There was evidence to the following effect: Prior to his enlistment, Green was a young farm boy 22 or 23 years of age. He did general farm work and was a good hand. Witnesses testified that before Green entered the army, he was "an extra good hand." He was robust and stout and not a drinking man.

The experience he passed through while in the service are shown on his discharge papers as follows: "* * * battle engagements, skirmishes, expeditions; Lucey Sector, August 6 to September 11, 1918; St. Mihiel offensive, September 12 to 16, 1918; Euvezin Sector, September 17 to October 7, 1918; Meuse-Argonne offensive, October 19 to November 11, 1918; raid, Bois de Donmartin, September 23, 1918 * * *."

The unusual severity of the service cannot be questioned. The discharge papers also show: "`Wounds received in service, none. Physical condition when discharged, good.' And the signature of the soldier, `Arthur W. Green,' over the signature of `W. H. Schwind, Captain, Infantry, U. S. Army, Company B, 356 Infantry' * * *."

At the time of his discharge, June 11, 1919, he was met at the troop train by his brother, who testified at the trial as follows:

"When I first saw him was in the troop train in Kansas City before he was discharged. * * * I found him in the car in the seat, sitting in a seat in the car, so he seemed to be feeling bad of some kind, and his head was hurting him or something, and I asked him how he felt and he said he hadn't been able to eat anything, but I noticed him — it seemed to me that there was something wrong with him. He didn't look like the same fellow to me, looked like he was all blowed up and had a kind of a starey look from his eyes. * * *

"Arthur always complained of being sick, that there was something wrong with his head. He would get dizzy spells and sick spells, and he had these sick spells and dizzy spells a day or two after he was discharged, and he continued to get worse every day. He had a wild, starey look and had no control of himself and would fall over, and he would fall on anything that was in the road. * * *

"Arthur was discharged June 11, 1919. In my mind Arthur was never able to do a day's work since his discharge. He tried to work, he had the reputation of being one of the best farm hands. He held lots of jobs; he would hold a job at anything there was no work about. He could sit on a cultivator if he didn't fall off and fall under the wheels, and things like that, and he tried up to the time he couldn't move. * * *

"I think the first man he worked for was Mr. Wilhelm, on a farm near town. * * *

"Arthur was always looking for a job after his discharge, but he couldn't hold a job very long, it seemed like."

Mr. Wilhelm, for whom Green worked in June, 1919, testified as follows:

"Well, when I went to him, to hire the man, I asked him * * * if he would shock wheat for me, and he said he would, but he said that he couldn't make me a full hand. He didn't state why, nor I don't think that I asked him, and I said, `Well, what will we do about the wages?' `Well,' he says, `you pay me what you think I am worth.' I said that was fair enough, so when we settled I paid him $5 a day, and to my knowledge he worked eight days for me. * * *

"I think the majority of men were getting $6.00. * * *

"I didn't think he done the work that an ordinary man would."

Other witnesses who saw Green at the time of his discharge testified that he had a "starey look" in his eyes; that he did not look natural or speak natural; that his appearance indicated that he could not "see good"; that "he had a kind of a stare — look at you and wouldn't answer your questions readily"; that he "didn't talk straight out like he used to."

One witness for whom Green worked shortly after his discharge testified that Green got dizzy and had nosebleed while working; that while working, a few months later, he would stagger forward and would have sinking spells; that he claimed he was sick and could not eat, and did not eat very much; that he seemed to have a discouraged attitude toward life.

Witnesses testified that practically this same condition continued from the time of his discharge. At times he was able to work, but he was not considered a good hand; and kept the jobs which he obtained only a short time. His sight grew worse; and he finally became totally blind.

One of the witnesses who employed him for several months evidently did so out of sympathy. He testified: "I testified on cross-examination that I paid Arthur Green $50. The reason I paid that sum was through sympathy. He had worked for me ever since he was a boy about thirteen years old, off and on, and was working for me before the time he went to the army, and when he came back I felt it was my duty to keep him."

Two doctors testified, and excerpts from their testimony are as follows:

Dr. A. G. B. Brown, a witness for the plaintiff, testified as follows:

"I had occasion to examine Arthur Green after he came out of the army, but cannot give the date. * * *

"The Court: In any event, it was within a year? A. Oh, yes, it was less than a year.

"Q. (by Mr. Graham) You would say within a month, would you? A. I would naturally think it was a month. I know I saw him almost every week, so far as that is concerned, but his physical condition, I am satisfied it wasn't over a month when I had occasion to see him. When I first examined him I just considered it a nervous condition, due to some excitement or some such cause. I first noticed him losing his eyesight, I think, several years afterwards. His nervousness just seemed to gradually grow worse. He would gradually become more of a complainant all the time, and it was a hidden case that I couldn't make a diagnosis to tell what the real trouble was. I think he became totally blind four years after he left the army.

"Q. Doctor, in your opinion as a doctor, what would you say Arthur's trouble was attributed to? A. Well, I could lay no other cause only shell shock. Of course, that covers a multitude of conditions, but it was the only cause I could find.

"Q. In your opinion, you say Arthur Green was a well man when he was discharged from the army — a well man or unwell man? A. He was an unwell man when he was discharged from the army.

"Q. And would you say he was not capable of carrying on a gainful occupation? A. He absolutely wasn't after he left the army."

On redirect examination he testified: "He complained to me of dizzy spells from the very beginning of his trouble. I considered it a condition I didn't exactly understand. I really didn't understand the dizziness, but I knew it was a deep condition. I sent him to the Veterans Hospital about his blindness."

On recross-examination he testified: "I never treated him for blindness, and think his nervousness was due to shell shock and that is the only explanation that I can make for it. I never saw one in his condition. His condition was different from any I had ever seen, and I assumed it was from shell shock."

Dr. R. M. Benson, a witness for the plaintiff, testified as follows:

"I examined Arthur Green, the exact date of the examination that I made on him I wouldn't remember; some time, probably, in 1921 or 1922. * * *

"I found especially a condition of his eyes that meant some serious trouble in store for him, and I asked him at the time if he had reported this to the army, if they knew anything about it, and he said he had not. But at the time I examined Green, I wouldn't be sure when it was — I found him suffering with an optic atrophy. An optic atrophy, as a rule, is preceded by a choked disk and optic neuritis which usually runs for eighteen months or two years before this atrophy takes place, and as I said, or rather I told Green, I said, `You should report this to some of the officials because you have a condition that is absolutely incurable and there isn't any question in my mind but what that dates back to your army service and it is due to some of the trouble you have gone through over there in France,' and I told him at the time I would give him some counteractive treatment and he could come back if he wished, but that the treatment in all probability wouldn't do him much good, and later on he came back with a history of having had some convulsions and terrible headaches and a condition that would lead any thinking man to assume that he had a cerebral edema or toxicity that...