United States v. Dudley, 6904.
| Decision Date | 17 April 1933 |
| Docket Number | No. 6904.,6904. |
| Citation | 64 F.2d 743 |
| Parties | UNITED STATES v. DUDLEY. |
| Court | U.S. Court of Appeals — Ninth Circuit |
H. E. Ray, U. S. Atty., and Sam S. Griffin, W. H. Langroise, and Ralph R. Breshears, Asst. U. S. Attys., all of Boise, Idaho.
Hawley & Worthwine, Jess B. Hawley, and Oscar W. Worthwine, all of Boise, Idaho, for appellee.
Before WILBUR, SAWTELLE, and MACK, Circuit Judges.
Appeal from judgment entered on verdict for plaintiff in an action on a war risk insurance certificate.
1. Defendant complains of the denial of its motion for directed verdict. The jury found plaintiff totally and permanently disabled May 18, 1919, the date of his discharge (his policy of insurance was in effect, by payment of premiums, until October 31, 1920). The question presented is whether there was any substantial evidence to support the verdict.
Plaintiff's testimony tended to show the following facts: He was in the front lines in France fifteen days, receiving a slight gunshot wound; during thirty-six hours of this time he was on stretcher duty without relief. While at the front he had an attack of dysentery; he received treatment at the infirmary and later spent three weeks in causal camp under medical care. Thereafter, he spent four months on sick call, never being restored to full military duty. The dysentery was cured, but during the remainder of his military service and since, he has suffered constantly from chronic constipation, abdominal pains, nausea, nervousness, and insomnia. The abdominal soreness was somewhat, but not entirely, relieved by an appendectomy in 1921; the other afflictions have continued unabated. Despite a strict diet, not a week has passed since he left the army without an attack of vomiting, frequently accompanied by a fainting spell.
Before entering the army he operated a 240-acre ranch, supervising farm work and sheep herding. Since discharge, his condition has prevented successful resumption of his former occupation, even on a small scale. During 1919 and the first part of 1920, he helped on his father's farm but became exhausted easily and could not work for more than an hour or two at a time. After marriage in 1920, delayed until then because of his health, he tried to farm a 10-acre plot but had to hire help which, but for his condition, would have been unnecessary. He had his appendix removed in 1921, spent several months in hospitals, the rest of the time convalescing, but with little relief. In 1922 and 1923, he again tried to farm small acreages; 1926 and 1927, acted as overseer for farming operations of his father.
He made no money in any of these ventures. In all he was painfully handicapped by his condition; his work was frequently interrupted by vomiting, he became exhausted easily, could not sleep, and was extremely nervous.
In 1924, 1925, and 1928, his condition was such that he did practically nothing. In 1929 he secured a contract to purchase 20 acres of a tract by improving it but lost the contract because his health prevented his doing the work. August to November of that year he spent in a government hospital. Thereafter, helped by a veterans' welfare agency, he secured light clerical work at $80 per month in the Idaho Department of Law Enforcement. The salary was increased to $110 and then to $125. After about fifteen months, a change in administration caused him to lose his job. While holding it, he missed on the average five days each month because of his condition, in addition to time lost through leaving early in order to visit his doctor. His work was checking statistics; according to testimony of the Secretary of State, who employed him, "he was protected more than any other man * * * in the office"; according to the Assistant Secretary, "his work was so arranged that he did only * * * work which he could do without heavy labor." Notwithstanding the character of the employment, it frequently exhausted him so he could not eat or sleep. Since losing that job, he tried to make and sell potato flakes in his home but had to give that up because of his health.
Prior to 1925, he supported himself on money he had saved before entering the service. Since 1925, he has "lived mostly on charity except what help * * * his folks gave" him.
In most important respects, plaintiff's testimony was corroborated and substantiated not only by relatives but by friends,...
To continue reading
Request your trial
-
Wiener v. Mutual Life Ins. Co. of New York
... ... 526, 11 S.E. 50; Equitable Life Assur. Society ... of the United States v. Fannin, 245 Ky. 474, 53 S.W.2d ... 703; Wachovia Bank & Trust ... prejudice to influence the verdict." U.S. v ... Dudley, 64 F.2d 743. In the latter case the court found ... such evidence ... ...
-
United States v. Holland
...preponderates in favor of the party making the motion — the responsibility of weighing the facts is the jury's. United States v. Dudley, 9 Cir., 64 F.2d 743, 744. We must assume as established, however, all the facts that the evidence supporting plaintiff's claim reasonably tends to prove, ......
-
Garrett v. Mutual Ben. Life Ins. Co. of N. J.
...as such, is ordinarily of no materiality and may in some cases cause sympathy or prejudice to influence the verdict.' United States v. Dudley, 9 Cir., 64 F.2d 743, 745. In the latter case the court found such evidence nonprejudicial because it was invited. The same was true in the Jennings ......
-
United States v. Warren
...at the time of discharge is not fatal to an action on the policy. It is merely an inconsistency to be weighed by the jury. United States v. Dudley, 9 Cir., 64 F.2d 743; Rackoff v. United States, It does not appear that insured has a work record which disturbs the inference of disability. Th......