Malavski v. United States, 4350.

• Decision Date: 26 November 1930
• Docket Number: No. 4350.,4350.
• Citation: 43 F.2d 974
• Parties: MALAVSKI v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

43 F.2d 974 (1930)

MALAVSKI v. UNITED STATES.

No. 4350.

Circuit Court of Appeals, Seventh Circuit.

June 17, 1930.

Rehearing Denied November 26, 1930.

Edward H. S. Martin, of Chicago, Ill., for appellant.

Joseph A. Struett, of Chicago, Ill., for the United States.

Before ALSCHULER and EVANS, Circuit Judges, and LINDLEY, District Judge.

PER CURIAM.

Appellant appeals from a judgment for defendant in a suit brought to recover total and permanent disability benefits under a war-risk insurance certificate issued to plaintiff. The court directed a verdict for defendant.

Appellant enlisted in the United States Army May 5, 1917, and shortly thereafter applied for and received a war-risk insurance certificate for $10,000, which provides for monthly installments of $57.50 each in case of his permanent and total disability. This insurance remained in effect until May 1, 1919, and then lapsed if the defendant was not then totally and permanently disabled. The District Court was of the opinion that the evidence of appellant was not sufficient to sustain a verdict showing that he was totally and permanently disabled on May 1, 1919. If the court was in error in that respect, the judgment cannot stand.

Appellant was gassed in battle in the Argonne in 1918, and was cared for at a temporary hospital in a French house for three days, then sent to Field Hospital No. 2, and then to a Base Hospital, where he remained for three months. He was next placed in a casual company for a short period, and thereafter sent to Brest, where he remained in barracks for three weeks before he sailed for home. He arrived in America April 2, 1919, and, until his discharge on April 12, 1919, remained in camp. He never did any army duty after he was gassed.

Appellant further testified that ever since he was discharged he has had constant pains in his chest and back, has coughed continuously, is always tired, and has experienced excessive sweating; that he was in the Oak Forest Sanitarium in June, July, and August of 1921; that he attempted to work for a malleable iron company, the International Harvester Company, and an electric machine company, but that, after trying for a few weeks in each instance, he was compelled to lay off on account of illness and return home for several months. During none of his attempts at labor, according to his testimony, was he able to work continuously, but during each week was, because of his condition, compelled to desist for two or three days.

After various attempts to work, ending each time in illness and necessity of complete rest, in September, 1921, he was taken to...