Hirt v. United States, 438.

• Decision Date: 26 January 1932
• Docket Number: No. 438.,438.
• Citation: 56 F.2d 80
• Parties: HIRT v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

56 F.2d 80 (1932)

HIRT v. UNITED STATES.

No. 438.

Circuit Court of Appeals, Tenth Circuit.

January 26, 1932.

M. Ralph Brown, of Albuquerque, N. M., for appellant.

Richard A. Toomey, Insurance Atty., Veterans' Administration, of Denver, Colo. (Hugh B. Woodward, U. S. Atty., and Gilberto Espinosa, Asst. U. S. Atty., both of Albuquerque, N. M., William Wolff Smith, Gen. Counsel, U. S. Veterans' Bureau, and Bayless L. Guffy, Atty., U. S. Veterans' Bureau, both of Washington, D. C., and W. F. Cheek, Atty., U. S. Veterans' Bureau, of Albuquerque, N. M., on the brief), for the United States.

Before LEWIS and McDERMOTT, Circuit Judges, and SYMES, District Judge.

SYMES, District Judge.

Hirt brought this action against the United States to recover permanent disability benefits on a war risk insurance policy issued to him while a soldier in the World War. All the facts necessary to a recovery are stipulated, except the alleged total and permanent disability. He was discharged from the Army on April 20, 1919. His premiums were paid up to and including April, 1919, and it is conceded that he has been totally and permanently disabled since November 20, 1924. The only question is, therefore, Was he totally and permanently disabled from May 30, 1919, the date his insurance lapsed?

At the close of plaintiff's case, the trial court, on motion of the government, directed a verdict in its favor. Hirt appeals.

The court in so doing stated that Hirt undoubtedly had a severe case of influenza while in the army, and was in the hospital a long time; that the only evidence on which the jury could say he was totally and permanently disabled is his own testimony that his physical condition to-day is the same as when he left the army; and that, while he was undoubtedly sick when discharged, he had not proved he had tuberculosis at that time; that he followed his usual occupation for five and one-half years after his discharge from the army.

Plaintiff's clinical record while in the service is inconclusive. For example, it shows his first admission to a government hospital September 19, 1918, diagnosis, influenza, condition on completion of case, recovery; that he had been sick for three days, cold, cough, sore throat, headache. "Lungs normal, a few moist, bronchial rales." A later card shows he entered a hospital December 1st of the same year. Final diagnosis rheumatic fever, acute. "Lungs clear, no rales, no dullness." That on March 4, 1919, he was admitted to the hospital for "arthritis, chr. mult." Symptoms, arthritis in the hips, knees, and ankles. Nothing said about his lungs. Again on March 31, 1919, the record shows a diagnosis of arthritis, chronic, multiple, cause undetermined. "Condition on the completion of case, good. * * * Lungs negative."

Plaintiff testified on his own behalf that his sickness started in August, 1918, while overseas and a few days after he had camped in the mud and rain; that he felt pains and aches all over. He went to the infirmary, was put to bed, and later moved to a base hospital. The doctors stated he had flu, he coughed, and had pains in the chest. He later reported back to his company, but in November grew worse, claimed he had rheumatism, and went to a hospital again, where he remained until the 25th of November. He was then sent to a casual camp, hardly able to walk. Felt very sick, began to cough, and lost more weight. A short time after he had a high temperature, and the doctor told him his lungs were in bad shape. He was put in the hospital from about the 1st of December, 1918, until January. Was an invalid until he was sent home to Camp Dix, N. J., and put to bed in a base hospital. The doctors told him there was not anything wrong; that his chest would clear up if he went home, slept in the fresh air, and took it easy for four or five months. Next he was sent to Camp Grant and discharged. At this time he had a thumping feeling in his chest and was coughing. Same feeling as he has now, although at the present time there is more pain. Went to work in a coal mine with his father three weeks after his discharge, and averaged two days a week, the same as the other miners, until November, 1924. Also tried harvesting, but had to give it up. Received some help from his fellow workmen.

In 1919 saw a Dr. Warner, who advised him to go to bed; that he was to be examined later, but failed to report to the doctor, and did nothing more until 1922, when he was again examined. Says he was 15 pounds underweight, and running a slight temperature. Again refused to report to a doctor. State health board advised him to come to Springfield, Ill., for an examination, but he ignored the letter, and did nothing more until September, 1924, when, on the advice of a friend, he called upon a patent medicine doctor, who found he had a high temperature, and suggested he go home and go to bed. Went to St. Louis, and was examined by a Dr. Singer in November, 1924, who X-rayed him and stated he was in a serious condition and suggested a sanitarium. Condition this time the same as when he was discharged. Later he went to the government hospital in Kentucky, where he remained a year and a half. Then went home and has not been in hospital since.

When he first went home after being discharged, the doctor told him that his tuberculosis would be all right in six months, if he had plenty of fresh air and rested.

His witness, Dr. Singer, who seems to be well qualified, testified he examined Hirt in November, 1924, found bronchial breathing, rales in left upper lung. In the right upper there was harsh vessicular breathing with increased whisper and rales. X-ray plates showed marked involvement in his right lung. Every evidence to support a diagnosis of pulmonary tuberculosis. At that...