United States v. Gower, 968.

• Decision Date: 31 May 1934
• Docket Number: No. 968.,968.
• Parties: UNITED STATES v. GOWER.
• Court: U.S. Court of Appeals — Tenth Circuit

71 F.2d 366 (1934)

UNITED STATES v. GOWER.

No. 968.

Circuit Court of Appeals, Tenth Circuit.

May 31, 1934.

A. E. Williams, Asst. U. S. Atty., of Tulsa, Okl., and Randolph C. Shaw, Sp. Asst. to Atty. Gen. (C. E. Bailey, U. S. Atty., of Tulsa, Okl., Will G. Beardslee, Sp. Asst. to Atty. Gen., and Thomas E. Walsh, of Washington, D. C., Atty., Department of Justice, on the brief), for the United States.

Glenn O. Young, of Sapulpa, Okl., for appellee.

Before LEWIS and BRATTON, Circuit Judges, and KENNEDY, District Judge.

LEWIS, Circuit Judge.

Appeal from a judgment of liability on a war risk insurance policy. Plaintiff, appellee here, alleged in his complaint that he enlisted in the active military service of the United States on or about June 26, 1918; that he was honorably discharged on August 2, 1918; that on July 15, 1918, while in the service, he suffered and sustained physical injuries, disease and impairment, viz., prolapsus of the rectum, injury to kidneys, back and bladder, and nervous and mental disorders; and that on that date he became and has since been continuously, permanently and totally disabled; that he presented his claim on said policy and filed it with the United States Veterans' Bureau on or about June 20, 1931. He instituted this suit on the 20th day of January, 1932.

The answer contains a general denial and a plea of the statute of limitations. Act of July 3, 1930, § 4, 46 Stat. 991, 992, U. S. Code, title 38, § 445 (38 USCA § 445).

The policy lapsed for nonpayment of premiums on October 1, 1918, unless on that day or theretofore the plaintiff had become totally and permanently disabled. The burden was on him to prove that disability. His own testimony on that subject is this: On July 2, 1918, he became sick with diarrhea and cramps and was taken to base hospital and there operated on July 8, 1918. He was suffering from prolapsus of the rectum, had a swollen stomach and hurt from the hips down, his legs felt like they were asleep or swollen, his kidneys and his back hurt him. He came home and has since suffered from prolapsus of the rectum. His bowel movements are painful, cause swelling and make him sick at times. He has been unable to work to speak of since he was discharged. He has noticed no improvement since he came out of the army. Before he went into the army he was a good man physically. After bowel movement he has to put the prolapsus back, which is very painful. He did not consult a doctor until 1919, that was Dr. Wells. He consulted Dr. King in 1925. Dr. King gave him some medicine, treated him twice. No other doctors treated him. He had not been to hospital since his return home, but had been examined by other doctors at various times. At first he drew compensation. It was cut off in 1923. He did not draw any more until 1928. On cross examination he testified that he had not worked any since he came out of the army, except to do chores about the house; that he lived on a farm. In 1919 he farmed twenty acres, in 1920 fifteen acres, and in 1921 twenty-five acres. Except the years 1924 and 1925 he had control of twenty to forty acres of farm land on which he was overseer. He had plowed a few days and drove an automobile, when he had one. He worked on the road some in 1926 and 1931. He drove a team a few days on the road. He denied that he was advised to go to the hospital, but said that he didn't remember the time he was requested to go to the hospital; that he went to Dr. Wells in 1923. He denied that anyone had recommended an operation and hospital treatment, as shown by exhibits produced. On redirect he testified that he helped in the management of fifteen to forty acres since he came out of the army; that he drove a team a part of the time; that he never performed a full day's work on the highway; that he can sit down without it hurting him and drive an automobile and operate it; that his brother-in-law farmed with him two years; and that his step-son and another boy did the work. He remembered that Dr. Wetzel examined him in March, 1920.

He produced four other lay witnesses. The first one testified that he visited plaintiff occasionally on the farm; that he never saw plaintiff doing any work; that his condition was good when he went to the army. Asked if he knew anything about plaintiff's physical condition, he said: "Nothing, only what I observed." He said that he had not seen him work any; that he might have worked when he did not see him. He gave no dates of meeting or seeing Gower.

The second witness testified that he had visited plaintiff in his home; that plaintiff looked like he had been suffering. He was not in bed but would lie with his clothes on — "Just seemed to be resting." He knew that plaintiff drove a team on the road, but knew nothing about his work since he came from the army.

The third witness testified that he lived three miles from the plaintiff; that his condition was good when he went to the army; that his health after return seemed to be bad; that he had not known him to work regularly at anything; that plaintiff went out to Western Oklahoma in 1926; prior to that time he would see plaintiff about once a month; "he did not know whether plaintiff worked or not."

The fourth witness testified that plaintiff's condition was good before he went to the army; that since he came back he looked awfully bad, sometimes looked like he would die. He had never visited plaintiff's home when he was sick. His brother-in-law and step-children would do most of the work. Plaintiff did chores. He was a good worker before he went to the army. He did not know how much work plaintiff did.

Three physicians were then called as witnesses by plaintiff. Dr. Wells testified that he had examined plaintiff since he came out of the army; had found him suffering from prolapsed rectum, which created a lot of nervous reflexes; did not remember that he treated plaintiff; that plaintiff's condition might make him sick to his stomach and cause him pain, especially about the hips and stomach; that the condition was chronic and strenuous work would aggravate it; that he did not know whether his condition can be cured by an operation; that he was not a rectal surgeon; that he ought to be treated by a specialist. The witness gave no dates of his examinations.

Dr. Schrader testified that he had examined plaintiff some time ago, about a week before he testified; found him suffering from prolapsed rectum; that his condition is chronic and permanent; that he looked emaciated and thin; that he thought plaintiff could not pursue any substantially gainful work; that he had been continuously unable to pursue any substantially gainful work from the time his then condition had its origin; that he was not a surgeon and could not say whether an operation at the inception of the disease would have been beneficial. Plaintiff could run an elevator, drive an automobile or truck part of the time, but could not load or unload them. He was not prepared to say whether plaintiff would be cured if he had proper hospitalization and an operation. He thought that was a question for a specialist in rectal diseases. The witness gave no dates of his examinations or whether he made any except the one about a week before the trial.

Dr. King was recalled and testified that he prescribed for plaintiff two or three times; that he had a prolapsed rectum to a considerable degree, bleeding considerable at times; that plaintiff would be all right some days and all wrong other days; that according to the history of the case an operation would be dangerous; that plaintiff's condition was probably permanent, reasonably certain to continue as long as he lived. When asked whether he knew if plaintiff was totally disabled in 1919, 1920 and 1921, he answered: "No, Sir." He further testified that if plaintiff's condition was the same as when he was discharged from the army he could not pursue any gainful occupation without suffering a great deal of pain and aggravating his condition.

At the close of plaintiff's evidence the defendant's motion for directed verdict was denied.

The defendant then introduced three lay witnesses. The first one lived about three miles from plaintiff and had known him for about twenty-five years. He first saw him after his return from the army about 1925; would see him passing by witness' place going to town. Sometimes plaintiff drove a car, sometimes a team. Plaintiff's physical appearance was then about the same as it is now. Talked with plaintiff several times, and never heard him complain, never complained of anything being wrong with him.

The second witness lived a half mile from plaintiff. Plaintiff had lived at several places, part of the time just across the road from witness. In 1921 plaintiff farmed right across the road from witness and did all kinds of farm work such as plowing and driving a team, and seemed to do the work like an ordinary farmer; never heard the plaintiff complain. He raised corn and cotton and worked some on the road in 1921. Witness saw him run a scraper and build a rock wall, worked just like the ordinary hand on the road. Plaintiff left the place across the road and was gone about a year or a little more. The farm which plaintiff worked had 160 acres.

The third witness had known plaintiff since 1914. Plaintiff had lived in the neighborhood, but moved around to different places. Plaintiff came home from the army in 1918, and witness...