United States v. Harth, 9421.

• Decision Date: 25 October 1932
• Docket Number: No. 9421.,9421.
• Citation: 61 F.2d 541
• Parties: UNITED STATES v. HARTH.
• Court: U.S. Court of Appeals — Eighth Circuit

61 F.2d 541 (1932)

UNITED STATES v. HARTH.

No. 9421.

Circuit Court of Appeals, Eighth Circuit.

October 25, 1932.

Harry M. Reed, U. S. Atty., of Waterloo, Iowa (D. C. Browning, Asst. U. S. Atty., of Sioux City, Iowa, and H. F. Dickensheets, Asst. Ins. Atty., of Des Moines, Iowa, on the brief), for the United States.

David F. Loepp, of Sioux City, Iowa, for appellee.

Before STONE, KENYON, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

This is an appeal from a judgment against the United States upon a policy of war risk insurance. Substantially the only error assigned and argued is the action of the trial court in refusing to grant appellant's motion for a directed verdict upon the ground that plaintiff-appellee had failed to prove the existence of a permanent and total disability during the life of the contract sued upon. Error was also assigned to the court's charge relative to total and permanent disability, but the substance of this point is embraced within the scope of the preceding assignment and may be resolved accordingly.

The essential facts by which the disposition of this case must be controlled are the following:

Appellee enlisted in the army of the United States May 13, 1918 and, on the following day, was granted a ten thousand dollar policy of war risk insurance. September 12, 1918, while engaged in the St. Mihiel drive, he sustained an inguinal hernia on the right side. This was subsequently successfully reduced by operation at the Army Base Hospital at Nantes, November 11, 1918. September 25, 1918, in the Argonne, appellee received a severe shrapnel wound in the right thigh. On the following day he was taken to a field hospital, where the shrapnel was removed. He was then transferred to a base hospital where, October 9, 1918, the shrapnel wounds were corrected and closed. His transfer to the base hospital at Nantes followed, and December 18, 1918, he was sent back to the United States. He was discharged from the army January 28, 1919. His Army Service Record shows that the Board of Review, January 14, 1919, reported a maximum improvement attained with respect to hernia and gunshot wound, but allowed a total of 10 per cent. disablement, for which appellee still receives compensation. His policy of war risk insurance lapsed March 14, 1919, unless then matured, as now claimed by the soldier.

Shortly after his discharge he went to Kansas City, Mo., where, for seven months, he worked for the W. B. Young Supply Company, in the plumbing supply business. His testimony is that his employment required him to lift heavy fittings, pipe, and the like; that this caused his right leg to tire and pain him; that he was compelled frequently to take time off on this account, which resulted in his discharge because of his inability to work steadily.

About two months after leaving the Young Supply Company he went to Sioux City, Iowa, and began working for the Wigman Company, also a plumbing supply house. He worked there as a checker and packer of plumbing supplies. After checking and packing he wheeled these supplies to the depot or station where they were placed for hauling and delivery. He states that this distance of wheeling was short — about that of the width of the courtroom in which the trial took place. He held this position at Wigman's from February, 1920, until April 1, 1926. His hours were from 7 a. m. to 5:30 p. m., with an hour for luncheon. He was paid $35 per week, and received a vacation of one week each year in common with other employees. During this employment of rather more than six years he was compelled to lay off only two periods of any length, one of three weeks in October, 1922, and one of two weeks in August, 1924. He says he was absent from work for short periods in addition to these longer ones. The Wigman Company paid him in full for all but these longer absences. He also worked overtime during the taking of inventory and received extra pay therefor. His pay during this service aggregated nearly $11,000. He voluntarily left the employ of the Wigman Company April 1, 1926. He says he did this because he felt he couldn't keep his work up because of pain and weakness in his leg. The treasurer and manager of the Wigman Company testified that appellee's services were satisfactory when he was there, that he was with the company for several years, received a salary of $35 per week, was not paid this amount because of sympathy, and left their employ of his own accord.

After leaving the Wigman Company, appellee worked for two weeks in August, 1926, as a helper for a firm of paper hangers and painters. This work required him to go up and down stairs with heavy loads. He found himself unable to do this work because of the condition of his leg, and since that time he has undertaken no further employment. His claim is that the injuries he received in the service make his right side weak; that his leg tires easily and starts to ache and pain as a result of exertion. Appellee testifies that his condition at the time of trial in June, 1931, was about the same as it was in April, 1926.

The condition from which appellee suffers, as described by one of the physicians in the testimony, "is a rupture of the fascia, which we call the fascialata, that is nothing more than an enveloping sheath to hold the muscles in abeyance to their contraction and extension, and the muscles protrude through this wound on the outer side of the leg. When he contracts that muscle on account of this developing sheath being split the muscle ruptures or protrudes out through that rent or opening in the fascia. This of course interferes with the function of the muscle materially, and also causes pain and tiring of that limb on exertion, even standing for a long period of time with the protrusion of this muscle out through this rent in the fascia would cause an aching and a weakening of the limb. That is permanent."

Dr. Laughlin, called as a witness by appellee, examined Harth first about in June, 1929. In his opinion the condition found resulted from the shrapnel wound and was permanent. He says:

"I believe he would have to sit down and rest and he would have some pain as a consequence."

"I don't believe this man could do hard manual labor constantly."

On cross-examination he testified further as follows:

"I was government physician for quite a while after I got back from France, but I don't know whether I examined this man at that time or not. I don't think I examined him prior to my examination of two years ago.

"Q. Can you definitely say and positively say that the condition in 1921 was the same as it is now? A. I would say that it is worse now.

"Q. The rupture has grown larger; if there was any rupture at that time it had grown larger? A. Yes sir.

"Q. I say is it possible that there was no rupture to begin with of the repaired tissue, and that finally the repaired tissue gave way and left a rupture there, would that be possible? A. Yes sir, that would be.

"Q. You are not in position to say that the condition back in 1921, 1922, 1923 and 1920 was the same as it is now? A. I think it is worse now.

"Q. For all you know he may have been able to work back in that time, is not that true, Doctor? A. For all I know. My recollection from my first examination, that is two years ago, is that the bulging is much more prominent now than it was two years ago."

Dr. Valiquette, also for appellee, first examined the soldier September 25, 1930. He found the same condition resulting from the rupture of the fascia. He says: "A man with that kind of a leg doing common labor would experience some pain. I would say that the difficulty would be more a weakness with some pain. * * * I don't think this man could do work involving him on his feet."

Dr. Lincoln, called by the government, first examined appellee May 1, 1924. At that time he complained of weakness and pain in his right lower extremity. There was no evidence of muscle protrusion at that time. "As a result of the (shrapnel) wound there was probably scar tissue formed which would impinge the nerve and cause pain." "There would be some weakness of the leg."

Dr. Koch, for defendant, examined appellee several times between August, 1920, and January, 1922. He found no bulging of the muscles out of the scar at these times. The medical testimony differs as to the feasibility and advisability of repair by operation. This question is not deemed of serious importance to the substantial issue in this case.

Some claim was made by counsel for appellee in argument that the bill of exceptions was not filed in time. No motion to strike appears in the record, the point is not urged in the brief, and is apparently abandoned. Furthermore, the record discloses that the last renewal order was made while the court, by previous order, still retained jurisdiction for this purpose, even after expiration of the trial term. The bill was filed within the period granted by this last extension, and was therefore in good time.

Turning now to the crucial point in issue, we find the applicable principles considered at length in many decided cases by this and other circuits. Careful analysis discloses that there is no substantial conflict in these decisions. Different facts have led to apparently divergent conclusions, but such can be reconciled generally by obvious points of distinction. The question here is whether there is in the record any substantial evidence to support the verdict and judgment. United States v. Phillips (C. C. A. 8) 44 F. (2d) 689, 691; United States v. Perry (C. C. A. 8) 55 F.(2d) 819; United States v. Worley (C. C. A. 8) 42 F.(2d) 197.

"Where the evidence upon any issue is all on one side or so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury." Gunning v. Cooley, 281 U. S. 90, 94, 50 S. Ct. 231, 233, 74 L. Ed. 720.

The burden of proving permanent and total...