United States v. Atkinson
| Decision Date | 20 April 1935 |
| Docket Number | No. 7517.,7517. |
| Citation | 76 F.2d 564 |
| Parties | UNITED STATES v. ATKINSON. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David A. Turner, Atty., Department of Justice, and W. R. Smith, Jr., U. S. Atty., both of San Antonio, Tex., and Walter S. Howe, Asst. U. S. Atty., of El Paso, Tex.
R. A. D. Morton, of El Paso, Tex., for appellee.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
On April 28, 1934, plaintiff, who had kept all his premiums paid, brought this suit on a policy of government life insurance No. K 634242, into which on July 1, 1927, he had converted his war risk insurance policy, and which had, on July 1, 1932, been renewed for five years. He alleged that on January 1, 1928, he became totally and permanently disabled within the meaning both of the general terms of the policy, and of the particular definition of paragraph 11, § (2), thereof: "Without prejudice to any other cause of disability * * * — the loss of hearing of both ears * * * shall be deemed to be total, permanent disability." A trial to a jury resulted in a verdict and judgment for plaintiff. This appeal questions the jurisdiction of the court for want of a disagreement, and the correctness of the judgment for errors occurring on the trial.
We need not consider the jurisdictional point, for it passed out of the case with the enactment on January 28, 1935, of Public Resolution No. 1, 74th Congress (38 USCA § 445c). We proceed to a discussion of the claimed errors: (1) That the court erred in denying defendant's request for a peremptory instruction; (2) that there was error in withdrawing from the jury the issue of fraud tendered in connection with the plaintiff's application for reinstatement of his war risk insurance on June 10, 1921; (3) error in not instructing the jury that in determining whether plaintiff had, under paragraph 11, § (a), of his policy, suffered the loss of hearing of both cars, they should consider his possible use of, and the effect of his use of, artificial aids to hearing.
The evidence, outside of the documents offered and the medical testimony, consisted of plaintiff's testimony and that of three persons for or with whom he had worked before 1928. Without undertaking to detail it, it is sufficient to say that it was ample to support a verdict that plaintiff was without the aid of ear phones or other similar mechanical devices, to all practical intents and purposes, totally deaf; that the use of such phones greatly helped his hearing, and that but for this impairment of hearing which, in 1928 got so bad he could not hold a job, he was a capable and competent draftsman. Plaintiff testified positively, and his testimony was not disputed, that he had been for a long time getting deafer, and that since his practically total deafness had come on him he had not been able to get any employment. The employer for whom he last worked stated that though he was otherwise competent, his deafness was such that he had to let him go. The physicians testified that at least since 1932, the date the jury found his total disability occurred, speaking of the use of his ears unaided by devices, he had for all practical purposes, completely lost his hearing. They testified, however, that the use of artificial aids greatly increased his power to hear. There was conflict between them as to the extent to which he was practically aided by them in getting and holding a job. Plaintiff testified positively, and there was no attempt at contradiction, that to use his ear phone effectively for all of a working day would in using up batteries at 75 cents each entail a cost of from $10 to $12 a day, a practically prohibitive cost. That because of this cost he was only able to use the phone intermittently by turning it on when something came up that he particularly wished to hear. With the evidence in that shape, and the government insisting that paragraph 11, § (a), was invalid, and that, if valid, it must be construed to mean that one cannot be said to have lost his hearing in both ears if by the use of artificial aids he could hear, the court submitted to the jury whether plaintiff was totally and permanently disabled either under paragraph 11, § (a), from having suffered the loss of hearing of both ears, or under the general...
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