United States v. Burke

• Decision Date: 01 June 1931
• Docket Number: No. 6269.,6269.
• Citation: 50 F.2d 653
• Parties: UNITED STATES v. BURKE.
• Court: U.S. Court of Appeals — Ninth Circuit

50 F.2d 653 (1931)

UNITED STATES v. BURKE.

No. 6269.

Circuit Court of Appeals, Ninth Circuit.

June 1, 1931.

Anthony Savage, U. S. Atty., and Thomas E. De Wolfe, Asst. U. S. Atty., both of Seattle, Wash., and William Wolff Smith, Gen. Counsel, United States Veterans' Bureau, Bayless L. Guffy and Edward S. Ragsdale, Attys., United States Veterans' Bureau, all of Washington, D. C., and Lester E. Pope, Atty., United States Veterans Bureau, of Seattle, Wash.

Ralph A. Horr and Philip Tworoger, both of Seattle, Wash., for appellee.

Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.

SAWTELLE, Circuit Judge.

David A. Burke, appellee, hereinafter referred to as plaintiff, enlisted in the United States Army June 15, 1915, and was honorably discharged on the surgeon's certificate of discharge June 16, 1919. On February 1, 1918, he was granted while in the service a contract of war risk term insurance in the sum of $5,000, payable in monthly installments in the case of total and permanent disability. He claimed total and permanent disability from June 17, 1919, and from a judgment in his favor the government appeals.

Plaintiff testified as follows: He was kicked by a mule shortly after he enlisted in 1915, and during the time he was in the service of the United States government he was sent to a hospital in China for over a year, off and on many times. His knee would swell, and he would be in a hospital for 6 weeks, then be marked "quarters" for two or three days, and he would then again be sent to the hospital. While he was in the hospital in China under United States government surgeons, he had an operation on his right knee in 1916, then came to the Letterman General Hospital in San Francisco, where he stayed 2 months or more, until he was called before a board and discharged with disability. After his discharge, he went to Payette, Idaho, his home, and stayed there until November, 1919.

Plaintiff further testified: "I did nothing while there i. e., Payette, my knees were sore at that time and it was painful"; that from Payette he went to take training under the Public Health Service at Boise, and remained in the latter place until 1921, although not in training. He was in training approximately 10 days. He left Payette and went to St. Francis Hospital, where he was operated on for appendicitis. After leaving this hospital, he was given a six months' leave before going into training, and did not do anything; then he went into training again as an automobile mechanic and spent 4 months at Boise. This training consisted in bringing supplies from the stock room to mechanics working on cars. At the end of 4 months' training, he was again put in the Public Health Service Hospital at Boise, a government hospital, for an operation for adhesions. He was there over a year, then afterwards in 1920 was transferred to Tacoma, where he remained until August, 1920, during which time he did nothing. He returned to Payette, stayed there until October, 1920, and then went back to Tacoma about 1921. He did nothing while in Tacoma, for his legs were such that he could not do anything, and had been in that condition since he left the service. Under the supervision of the Veterans' Bureau he was taken to the Tacoma General Hospital, where he stayed until September, 1922, when he was ordered to the Veterans' Bureau Hospital at Boise, and stayed there under treatment a little over a year. He left the latter hospital in 1923 and went to the Soldiers' Home at Sawtelle, stayed there until January, 1924, and was then transferred to the Veterans' Bureau at Hot Springs, Ark., where he remained 4 months, later returning to Payette, where he remained until July, 1925. He was then sent by the Veterans' Bureau to a hospital at Boise, where he remained until he was discharged in September, 1925.

Plaintiff said further that at that time he was unable to do anything, and that he did not do anything because the Veterans' Bureau told him not to; that he stayed in Payette until July, 1926, when he was ordered to the Boise hospital by the Veterans' Bureau, where he remained 3 or 4 months. He returned to Payette, thence to Seattle, where he stayed until July, 1927, since which time he has done nothing. At this point he exhibited his knee to the jury, and, in answer to a question propounded by the court, said that that condition of his knee had been continuous since his discharge.

On cross-examination plaintiff testified that he paid no premium on his insurance after he was discharged. When he left the service, he did not go to work for a while, went out on a threshing machine for a couple of days, then went into training for a while in 1919 with the Idaho Power Company. He was in the latter place only about 10 days, was in the hospital a good part of the time on sick leave, and had appendicitis, for which he had an operation in December, 1919. His knees were then in the same condition as they were at the time of the trial. In January, 1920, he had vocational training as an automobile mechanic; drew pay for one or two weeks there. During all this time he was receiving $80 a month from the government.

Plaintiff identified Government's Exhibits A2 and A3 signed by himself, these two exhibits reporting that the training was satisfactory, and that he was following the course of work as outlined. In one of the statements signed by witness it was stated that he was learning how to set up pistons, tighten up bearings, adjust and reline brakes; that he was on the pay roll, and received 30 cents an hour. Later on in the cross-examination witness stated that the work that he did was while in a sitting position; that he himself never adjusted any steering gear or relined brakes; that he helped the mechanics once in a while; that he was under the impression that the pay there came from the mechanics as a donation, and that he did not recall signing any pay roll.

Plaintiff testified also that the government doctors told him to report to the hospital for examination and treatment ever so often, that he had not been in the hospital for 3½ or 4 years prior to the date of trial, and had not tried to work during that time.

Edward Carico, witness for plaintiff, testified that he had known plaintiff since 1906, that he saw him soon after plaintiff came from the Army in 1919 and at different times thereafter in Payette, Idaho; that plaintiff visited witness' father on the ranch, and remained there possibly a couple of days, doing no work while there; that plaintiff was complaining of his knees, and appeared to be in about the same condition as he was at the trial, possibly not quite so crippled. Plaintiff had to strain when he got out of the chair; his knees did not bend right, and he did no work. Carico said that he had observed Burke several times since he had seen him in Seattle and that there had been no change in the latter's condition; that when the latter visited witness' father he walked around over the farm, but not all of it.

Dr. Everett O. Jones, also a witness for plaintiff, testified that he was a surgeon admitted to practice in the state of Washington, had been engaged in the practice of surgery and medicine for 37 years; that he had examined plaintiff on March 3, 1930, and found that the latter had chronic synovitis (arthritis) involving both knee joints, and that as a result of this condition plaintiff has relaxation of the ligaments of both knee joints so that his knees are unstable. Because of this instability he has to keep the muscles of his legs in a state of constant contraction while he is standing, otherwise his knees would let him fall. The plaintiff has pains for two reasons: First, because of synovitis in his knee joints, and because of loose bodies in the knee joints which frequently get pinched or locked in the joints, thus causing pain and swelling; second, pain from spasms of muscles of the thighs, which is produced because of the unnatural tension of having to hold his muscles in when he is on his feet in order to keep from falling. Witness further stated that from the medical history of the case he would say that this had been a long-drawn-out condition, and that there were scars of two operations on the left knee and of one on the right. These operations had not cured plaintiff, and the latter's condition was permanent. On cross-examination witness stated that he had never seen this plaintiff until March 3, 1930, but...