United States v. Hansen, 7226.

• Decision Date: 12 April 1934
• Docket Number: No. 7226.,7226.
• Citation: 70 F.2d 230
• Parties: UNITED STATES v. HANSEN.
• Court: U.S. Court of Appeals — Ninth Circuit

70 F.2d 230 (1934)

UNITED STATES v. HANSEN.^*

No. 7226.

Circuit Court of Appeals, Ninth Circuit.

April 12, 1934.

John A. Carver, U. S. Atty., Erle H. Casterlin and Frank Griffin, Asst. U. S. Attys., and R. L. Slaughter, Atty., Department of Justice, all of Boise, Idaho, and Wilbur C. Pickett, Sp. Asst. to the Atty. Gen.

Hawley & Worthwine, Jess Hawley, and Oscar W. Worthwine, all of Boise, Idaho, for appellee.

Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.

SAWTELLE, Circuit Judge.

Appellee's complaint, based on his policy of war risk insurance, alleged that he became totally and permanently disabled during the life of the policy by reason of having contracted bronchial asthma, and the jury so found. The government contends on this appeal that the trial court erred in overruling its motion for a directed verdict, interposed on the ground that the evidence fails to establish the disability alleged. The service origin of the disability under which appellee now labors is not questioned; but it is contended that the disability is not total and permanent within the meaning of the law and the regulations of the Veterans' Bureau. The burden was on appellee to prove the affirmative of the latter issue, and we must view the evidence in the light most favorable to him.

The testimony in support of appellee's claim is undisputed. As a child he suffered from asthma until he was about twelve years old, but he had been free from asthma for seven years immediately preceding his enlistment in the Army in August, 1918. During his service he contracted colds which resulted in a recurrence of his asthmatic condition. He was honorably discharged in August, 1919, and the policy lapsed for nonpayment of premiums on September 30, 1919.

Immediately upon his discharge he returned to his home at Boise, Idaho, and, according to his testimony, "In a couple of days I had these wheezing and coughing spells asthmatic attacks again; I have never been free from the wheezing since that time, except perhaps a day or so at a time." About a month after his discharge he went to work as a candy maker, his pre-war occupation. The condition of his health at that time and the difficulty with which he worked he described as follows:

"That fall I went to work for Mr. Lewellyn, who operated a confectionery. * * * I was there from September to about the first of the year. I noticed at that time that I would choke up and wheeze * * * and used to go home sometimes in the middle of the afternoon, on account of this condition. * * * I noticed at night when I would go home after work, I used to go home choked up and sometimes I would knock off a few hours earlier and just go home and attempt to get what relief I could, and at nights I would still be choked up and unable to lie down. There was a time while I worked at Lewellyn's that I didn't work at all for three or four days, when I was choked up and wheezy and face swelled. I was flushed, and I coughed severely. During one of those attacks I don't sleep or eat. It is pretty difficult for me to talk; sometimes I can't talk. The first attack I had, in August, 1919, lasted about a week; that was before I went to work for Lewellyn. During the time I worked for Lewellyn I had an attack which lasted four or five days. I would say that was in November and overlapping into December. During the winter after I left Lewellyn's I had three or four attacks when I would be down and sitting in bed and didn't get out; didn't sleep; had a hard time getting my breath and my face would swell, and my sides...