United States v. Eliasson

• Decision Date: 18 July 1927
• Docket Number: No. 5054.,5054.
• Citation: 20 F.2d 821
• Parties: UNITED STATES v. ELIASSON.
• Court: U.S. Court of Appeals — Ninth Circuit

20 F.2d 821 (1927)

UNITED STATES v. ELIASSON.

No. 5054.

Circuit Court of Appeals, Ninth Circuit.

July 18, 1927.

Wellington D. Rankin, U. S. Atty., and L. V. Ketter, Asst. U. S. Atty., both of Helena, Mont. (William Wolff Smith, Gen. Counsel, and James T. Brady, L. A. Lawlor, and C. L. Dawson, Attys. U. S. Veterans' Bureau, all of Washington, D. C., of counsel), for the United States.

J. Molumby and Frank Polutnik, Jr., both of Great Falls, Mont., for defendant in error.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge.

On his contract of war risk insurance, issued under the War Risk Insurance Act and acts supplemental thereto (Comp. St. § 514a et seq.), the defendant in error recovered a judgment against the United States for $4,715. In his complaint he alleged that on May 6, 1918, while in the military service of the United States, he obtained war risk insurance for $10,000, payable in monthly installments of $57.50, in the event of his death or permanent disability occurring while the insurance was kept in force by payment of the monthly premiums due thereon, which monthly payments were paid until his discharge from military service on December 7, 1918; that he became permanently and totally disabled at the time of his discharge as the result of stomach trouble, encephalitis lethargica (sleeping sickness), and broken arches. The defendant admitted that the insurance was in force and effect from May 16, 1918, to July 31, 1919.

The defendant assigns error to the denial of its motion for an instructed verdict in its favor on the ground that, not only was there no proof that the plaintiff was permanently and totally disabled at any time prior to July 31, 1919, but that, on the contrary, the proof was that he could not have been so disabled prior to that date. Reliance is placed on the fact that after his discharge the plaintiff engaged in manual labor at different periods as long as a month at a time, as showing conclusively that the disability was not total or permanent at any time prior to January, 1923, when he became ill with sleeping sickness; also upon the fact that Ziller, the supervising officer of trades and industries in the Veterans' Bureau in connection with vocational training, testified that the plaintiff was a pupil under his supervision in an auto school, engaged in fitting pistons and other work on automobiles, with a view to becoming an auto mechanic, and that from October, 1920, to March, 1922, he saw the plaintiff at least once a month, and sometimes every week, that he received from the plaintiff's instructor only favorable reports upon his work, that the plaintiff was not absent from his class a month in the aggregate, that he noticed nothing in his physical condition which would disable him from continuing his attendance in the school, that he was in fit general physical condition to work as auto mechanic upon his course, and that the reason why he was granted vocational training was that he had flat feet; but upon cross-examination Ziller testified that the plaintiff was transferred to battery work for the reason that he was found in such physical condition that he could not be an auto mechanic. "He complained to me of his legs."

Among other witnesses relied upon is one Nelson, who testified that the plaintiff worked for him at heavy manual farm labor and received the going wage, although at times he was disabled on account of flat feet and rheumatism. There was evidence for the plaintiff, however, that a few days after April 27, 1918, the date of the plaintiff's enlistment, he contracted a cold from exposure and was ill for three or four days, and five or six weeks later was again ill with stomach trouble, with cramps and vomiting; that later he went to the base hospital for examination and was found unfit for overseas duty; that thereafter, in addition to stomach trouble, he suffered from rheumatism during the remainder of his time of service; that after his discharge he worked about a week in Montana, when he was taken ill with influenza, accompanied with severe headaches and stomach cramps and vomiting, leaving him weak; that he worked again for about two or three weeks, and was unable to continue, and was laid up for a period of a month and a half or two months; that he worked for one Dixon for about a month, but suffered with rheumatism and broken arches, and pain in ankles and knees; that he was laid up for a month and a half or two months, till some time in July, 1919; that he worked about a week in North Dakota, but was again taken ill with stomach trouble; that he received electrical treatments for rheumatism; that he again worked for two or three weeks, and worked off and on till February, 1920, when he put in a claim for compensation with the government and was ordered to St. Paul for examination. Returning, he stopped at Fargo, and his condition then, as described by a witness, was...