United States v. Lawson

• Decision Date: 18 May 1931
• Docket Number: No. 6261.,6261.
• Citation: 50 F.2d 646
• Parties: UNITED STATES v. LAWSON.
• Court: U.S. Court of Appeals — Ninth Circuit

50 F.2d 646 (1931)

UNITED STATES v. LAWSON.

No. 6261.

Circuit Court of Appeals, Ninth Circuit.

May 18, 1931.

H. E. Ray, U. S. Atty., and Ralph R. Breshears, Sam S. Griffin, and W. H. Langroise, Asst. U. S. Attys., all of Boise, Idaho.

Oscar W. Worthwine and Jess B. Hawley, both of Boise, Idaho, and R. W. Katerndahl, of Salt Lake City, Utah, for appellee.

Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.

SAWTELLE, Circuit Judge.

This is an appeal from a judgment in favor of plaintiff, in an action upon a contract of war risk insurance.

The errors complained of by appellant are to the admission in evidence of a regulation defining total and permanent disability, promulgated by the Bureau of War Risk Insurance by virtue of authority conferred by the War Risk Insurance Act; the failure of the trial court to give one of defendant's requested instructions; and the refusal of the court to grant defendant's motion for a directed verdict, made at the close of plaintiff's evidence, and renewed at the close of all the evidence, and substantially upon the same grounds.

Spencer H. Lawson, the insured, enlisted in the military service of the United States on August 4, 1918, and went overseas on October 28, 1918. He arrived in the United States on his return October 6, 1919, and was honorably discharged at Camp Dodge, Iowa, on October 20, 1919. His contract of war risk insurance lapsed November 30, 1919, at midnight. Plaintiff, when he enlisted, was 21 years old. The evidence tended to show that prior to his enlistment he had worked as a farmer for a period of 8 years, never having had any difficulty on account of his health in plowing ground, hauling wood, stacking grain, milking cows, and performing the general duties of a farmer on the average farm, and he had taken part in usual youthful athletic activities. His enlistment record showed him to be 5 feet 5½ inches in height, and his weight 139 pounds. From a record of general physical examination at place of mobilization, it appeared that his head, eyes and vision, ears and hearing, chest and extremities, were "normal," and that there were no deformities, except that under the head of "remarks" appeared the statement, "Remnants of old facial paralysis on right side, no trouble present." From army hospital records it appeared that plaintiff, on or about December 27, 1918, had a case of "mumps, bilateral," which lasted until on or about January 22, 1919; and the evidence tended to show that, previous to being taken to the hospital, plaintiff had been sick about 24 hours, the men having been doing 48-hour shifts. From the army records it further appeared that from March 4 to March 7, 1919, he was again under hospital treatment, the diagnosis being "glossitis" and "mumps, bilateral"; and that he was again admitted to the hospital, at Brest on August 21, 1919, the evidence tending to show that he had on a 3-day trip from Germany to Brest, in a bunk car carrying from 80 to 85 men, developed a sore throat with swollen tongue, and that he was feeling "hot all over," and that, on detraining at Brest, after he had "stood around eight or nine hours," he was "tagged" and sent to the hospital, where, it appeared from the army records, he was under treatment from August 21 to October 1, 1919, when he was assigned to duty, the final diagnosis being "scarlet fever."

At the time of his discharge, plaintiff signed a declaration wherein, in response to the question whether he had any reason to believe that at the present time he was suffering from the effects of any wound, injury, or disease, or had any disability or impairment of health, he answered "No." In a "Certificate of Immediate Commanding Officer," which was at that time signed by the captain commanding, at Camp Dodge, Iowa, the body of such certificate — containing statements, with blanks to be filled in, as to whether or not the officer had reason to believe that the soldier signing the foregoing declaration had then a wound, injury, or disease, whether or not incurred in the military service of the United States — was stricken out, and the certificate did not contain any statement on the above or any other subject. In another certificate, the surgeon who examined plaintiff at the time of his discharge certified that he had been given a careful physical examination, and that "In view of occupation he is — 0 — per cent. disabled."

The evidence further tended to show that, after plaintiff's discharge, he went directly from Camp Dodge to his home at Spencer, Idaho, arriving there about October 22, 1919; that, when he arrived home, he was weighing between 105 and 110 pounds, was troubled with a cough (which he had before his discharge), and suffered from lack of sleep on account of his aching joints; he at that time aching all over, and his back seeming to bother him more than other parts. It made him tired when he tried to carry a bucket of coal or milk a cow. His heart troubled him when he walked down town, about three blocks; he choked and got weak. Every afternoon he lay down on the lounge. As observed by witnesses who had know him and been familiar with his physical condition for a considerable period of time prior to his enlistment and who saw him after his return, he was very thin and was very much run down, was weak, nervous, and reticent, and there was a decided difference for the worse in his general condition of health. Ever since his discharge he has had a pain in his back, and has had pain continuously.

For about 6 months after his return, plaintiff rested, but in the spring of 1920, being unable to continue farming, and because he "had to do something," he, feeling a little stronger, on May 15 secured employment with the Forest Service as temporary forest ranger. Immediately following this, he was employed by the Forest Service during the summer in telephone maintenance work. Upon concluding this work, he laid off for 6 months, but again went to work, in the spring of 1921, as a forest ranger, continuing as such until the summer of 1923, when, on account of his condition, he was transferred to the office of the Forest Service at Mackay, Idaho. In the spring of 1924 he was discharged from his clerical position at Mackay because of his inability to handle or lift implements around the office. In the latter part of September, 1924, plaintiff became postmaster at Spencer, Idaho, a position which he held at the time of the trial. The employment records of the Forestry Department, introduced in evidence, tended to show that plaintiff was appointed temporary forest ranger on May 15, 1920, at a salary of $1,100 per annum, plus a bonus of $240 a year, this service terminating June 30, 1920, immediately following which he was employed on a temporary basis in connection with telephone maintenance work during the summer of 1920. On April 1, 1921, he was given a probatory appointment as forest ranger at a salary of $1,220 per year, plus an annual bonus of $240, serving in this capacity until August 31, 1923. On September 1, 1923, he was appointed a forest clerk at a basis salary of $1,100 per year, in which capacity he served until April 15, 1924. The duties of postmaster at Spencer were assumed by plaintiff in the latter part of September, 1924; his annual pay being $1,100. The evidence tended to show that plaintiff had paid out close to $1,400 since he had been postmaster, over and above any amount the government allowed him for separating allowance, for hire of substitutes during plaintiff's absence from the post office, while he was visiting hospitals and taking treatments.

While plaintiff was engaged in telephone maintenance work, he had to get off his horse every 15 or 20 minutes and either rest or walk. While he was a forest ranger he, on account of the pain it caused him to ride, used an automobile, except in one district where he had to use a horse. He had difficulty in riding, and rode with his right foot out of the stirrup, which permitted him to ride on the right side of the saddle, on the muscles of his leg. Owing to the difficulty he had in saddling a horse, he arranged at the ranger station a rope which was hung over a beam and which held the saddle suspended so that by untying the rope he could drop the saddle on the back of the horse. He would make camp at some ranch or sheep camp, where he had assistance in saddling his horse when he left. Instead of marking trees himself, requiring the swinging of an axe, he had the purchaser mark them. In 1921, while a forest ranger, he tried to plow in doing some road and trail work, but found he was unable to do the jerking and side motions required to throw the plow out of the furrow. Plaintiff bought in 1921 a belt nine inches wide, and wore it under his trousers as a support for his back; in 1922 he purchased a body brace extending from the small of his back up to his shoulders, and, in 1925 or 1926, a corset-like brace extending down over the hips and up under the armpits; and continuously since 1921 he has worn one or the other of said supports. During the winter of 1922, obtaining permission to do so from the Forest Service, plaintiff removed his headquarters to Windspur, Idaho, because of the difficulty he had in making the trip between the station to which he had been assigned and the post office at Windspur, 15 miles distant, to get his mail. He stayed at Windspur until the road opened up so that he could use his car to get back to the station, where, upon his return, he remained until he went to Mackay. As observed by a witness who saw plaintiff get out of his car at the station, and at gas stations at Dubois and at Spencer, Idaho, in 1921, 1922, and 1923, and since then it was quite an effort for plaintiff to get out and move around; "he acted like a man who had the lumbago — broken down in the back; always putting his hand on his hip or back," and "he walked away from the car like he had a kink in his back. * * * That condition has continued up...