Stuthman v. United States

• Decision Date: 08 November 1933
• Docket Number: No. 9705.,9705.
• Citation: 67 F.2d 521
• Parties: STUTHMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

67 F.2d 521 (1933)

STUTHMAN v. UNITED STATES.

No. 9705.

Circuit Court of Appeals, Eighth Circuit.

November 8, 1933.

C. A. Wilson and E. B. Adams, both of Hot Springs, S. D., for appellant.

E. D. Barron, Asst. U. S. Atty., of Sioux Falls, S. D. (Olaf Eidem, U. S. Atty., of Sioux Falls, S. D., and Byron S. Payne, Asst. U. S. Atty., of Pierre, S. D., on the brief), for the United States.

Before GARDNER, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.

GARDNER, Circuit Judge.

This is an action on a contract of war risk insurance, in which the pleadings are in conventional form.

The parties will be referred to as they appeared in the lower court.

After a jury had been impaneled and sworn, one of plaintiff's attorneys made an opening statement of the case to the jury, reciting that before the war plaintiff was an able-bodied man, able to do the hardest kind of farm work; that he enlisted in the service, was sent to Fort Riley, Kan. and then transferred to Camp Cody, at Deming, N. M.; that he took out a policy of war risk insurance, the premiums on which, during his service, were deducted from his monthly pay as a soldier; that the policy was kept in force by payment of premiums to the 1st of May, 1920; that he was totally and permanently disabled while the policy was in force; and then, after reciting plaintiff's various vicissitudes while in the service, his sickness, and his hospitalization, his honorable discharge at Camp Cody on December 10, 1918, and his return to Hot Springs, S. D., the attorney stated, referring to plaintiff:

"He had a severe and persistent cough; unable to sleep; nervous, suffered from loss of appetite; had headaches; was so incapacitated that he was unable to do any work whatever. He went out to his father's ranch and tried to work, but his experience would be that just as soon as he tried to do anything he would tire out and have to go and lie down. He was not even able to do the light work on the farm, such as the ordinary chores around the farm; could not even stand that. His condition then was that whenever he tried to work he just had to quit. In October, 1919, he consulted a doctor, Dr. Young of Hot Springs. All during that winter he became considerably weakened and lost a lot of weight. He was unable during the next spring to pay any further premiums on his policy of War Risk Insurance. As already stated, the last premium he paid was the following spring, March, 1920. He remained on his father's ranch for about two years. On January 14, 1921, he entered Battle Mountain Sanitarium, the government hospital at Hot Springs. He took some treatment there, and in June of the same year, the government sent him to Sioux Falls for vocational training. The government at that time was trying to train ex-soldiers who were unable to follow their pre-war occupation, for some occupation that they might follow. * * * They started Mr. Stuthman in for training in a business course, bookkeeping in a commercial college in Sioux Falls, but his condition was such that he was unable to accomplish anything in this course, so they changed him to laundry work; thought he might be able to be a laundry executive. This training was given him in Minnesota. He lasted in that sort of work about two weeks. Then he broke down; couldn't stand that. He returned to Sioux Falls and attempted to continue with the course in bookkeeping. He was unwell. He had to be absent part of the time, and consulted various doctors at the Veterans' Bureau, and he continued to try to learn bookkeeping until early in 1923. The government then decided that he was not able to do this, so they tried to give him replacement training with the Fischer Printing Company. This work was a trifle harder than what he had been trying to do, and again in two weeks he suffered a serious breakdown and had to go to a hospital in Sioux Falls. From Sioux Falls he was transferred to a hospital in St. Paul, Minnesota. This was early in 1923. Previous to that he had received some diagnosis of pulmonary tuberculosis, but the diagnosis he got in St. Paul was pulmonary tuberculosis, active and chronic, and the doctors recommended a transfer to Arizona, so he was sent to Arizona for treatment for active tuberculosis. Here he remained for a period of more than a year. In July, 1924, he took his discharge and the information that he received was at that time that his case was apparently arrested. That is, he was no longer actively tubercular. He was not cured, but the disease had, for the time being at least, ceased to be active. He returned to Hot Springs and went out on the farm, and, of course, during all of this time he had not been able to do any work whatever, except what he did in connection with trying to take training. In August, 1924, he consulted doctors at Battle Mountain Sanitarium. He was sent to Sioux Falls in December. Came back to Hot Springs and stayed on the ranch, but was unable to do anything. He went to Sioux Falls in June, 1925, and then returned again to the farm. Nothing particularly done for him except that he was examined and he stayed there until January, 1926, when he again entered Battle Mountain Sanitarium at Hot Springs. He has been a member of Battle Mountain Sanitarium at Hot Springs ever since 1926, and still is. Since he has been in Battle Mountain Sanitarium he has done what is called membership work. This started in June, 1926. In one of these government hospitals as they have at Hot Springs, there are, of course, civilian employees to take care of the important work. But there are a lot of things about a hospital, light duties, than can be done by the members after they become able to get up and get around. That isn't really work in the sense that...