United States v. Alvord

• Decision Date: 07 July 1933
• Docket Number: No. 2769.,2769.
• Parties: UNITED STATES v. ALVORD.
• Court: U.S. Court of Appeals — First Circuit

66 F.2d 455 (1933)

UNITED STATES v. ALVORD.

No. 2769.

Circuit Court of Appeals, First Circuit.

July 7, 1933.

John Lawrence Hurley, Sp. Asst. to U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Thomas P. Shea, of Springfield, Mass. (Arthur T. Garvey and D. V. Constantinides, both of Springfield, Mass., on the brief), for appellee.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

MORTON, Circuit Judge.

There is real difficulty with the record in this case. The bill of exceptions is very short, and has no statement that it contains all the evidence. My brethren, however, feel that, in connection with the opinion of the District Judge, it presents the facts and the evidence with sufficient completeness so that we can safely consider the appeal; and I am content to accept their view. Crowe v. Trickey, 204 U. S. 228, 27 S. Ct. 275, 51 L. Ed. 454.

This is an action on two policies of war risk insurance. It was heard jury-waived. At the conclusion of the evidence, the United States moved for judgment in its favor on the ground that there was no evidence warranting a finding for the plaintiff. The motion was denied, and the defendant excepted. The District Judge found for the plaintiff. His finding has the same effect as a verdict of the jury. Maryland Casualty Co. v. Jones, 279 U. S. 792, 49 S. Ct. 484, 73 L. Ed. 960; Fleischmann Cons. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624; St. Louis v. Western Union Tel. Co., 148 U. S. 92, 96, 13 S. Ct. 485, 37 L. Ed. 380.

The only assignment of error urged by the appellant is that there was no evidence that on or before 1 May 1919, when the policies lapsed for nonpayment of the premiums, Alvord had become totally and permanently disabled within the meaning of the policies.

There was no question as to the issuance of the policies, nor that they lapsed on the date stated for nonpayment of premiums. The evidence in its aspects most favorable to the plaintiff showed the following facts: The plaintiff enlisted in the United States Army during the war and was sent overseas. He was by occupation an automobile mechanic, and was assigned to the supply train. While serving as a volunteer litter-carrier during an engagement near Chateau-Thierry in August, 1918, he was gassed with mustard gas and was severely burned both externally and internally. The injury ended his active service. He was sent to various hospitals and invalided home. The injuries from the gas cleared up, except that he was left with chronic bronchitis or bronchial catarrh, which caused difficulty in breathing, spells of coughing, and, later, hemorrhages, some of which rendered him temporarily unable to work. His condition grew steadily worse, and in 1928 the government rated him for compensation purposes as totally and permanently disabled. The question before us, however, relates to his condition in May, 1919.

When the plaintiff was discharged from the Army on March 6, 1919, he received a rather perfunctory medical examination. It showed no disability. He then declared over his signature that he was suffering from no disability, and his discharge certificate stated that he was 0 per cent. disabled. He testified that he had been at Camp Devens for two weeks preceding his discharge and, while there, received no medical attention. In the same month that he was discharged, he went to work for the Westfield Garage and remained in their employ about a year. There was no evidence that he lost time on account of illness during this year, except his own testimony that he had to lay off for a day or more now and then on account of his disability. His associates recalled no time lost by him on account of illness. But they agreed that he had spells of coughing, shortness of breath, and hemorrhages. He then went West, and worked in Colorado, New Mexico, and Texas as a chauffeur for about a year. He received treatment...