United States v. Lesher, 6795.

• Decision Date: 31 May 1932
• Docket Number: No. 6795.,6795.
• Citation: 59 F.2d 53
• Parties: UNITED STATES v. LESHER.
• Court: U.S. Court of Appeals — Ninth Circuit

59 F.2d 53 (1932)

UNITED STATES v. LESHER.^*

No. 6795.

Circuit Court of Appeals, Ninth Circuit.

May 31, 1932.

George Neuner, U. S. Atty., and Livy Stipp, Asst. U. S. Atty., both of Portland, Or.

James F. Alexander and B. A. Green, both of Portland, Or., and Alvin Gerlack, of San Francisco, Cal., for appellee.

Before SAWTELLE, Circuit Judge, and NETERER and ST. SURE, District Judges.

NETERER, District Judge.

Reversal is sought of judgment on a verdict for plaintiff on an $8,000 war risk insurance policy claim. It is alleged that the insured became totally and permanently disabled prior to March 31, 1919, by reason of encephalitis lethargua residua. The sole issue is alleged error in overruling defendant's motion for a directed verdict.

Under the Seventh Amendment to the Constitution, a jury trial is guaranteed in a civil action; and that it is error to direct a verdict for defendant if there is any substantial evidence is stare decisis.

The testimony shows that plaintiff was employed from September, 1920, to December, 1922, every month, and was paid from $62.50, September, 1920, to $188.97, November, 1920, and at no time less than $99.64, which was paid in September, 1922, or a total of $4,080.33 covering the period, and he was intermittently employed thereafter until October, 1925, sometimes for four full months. There is, however, evidence that plaintiff was assisted in his duties by his fellow workers and that but for such assistance he could not have performed.

The commanding officer of plaintiff's company testified that in April and May of 1918, while going overseas, plaintiff was acting as company clerk, and had a complete breakdown; was very nervous; did not carry on after that in a normal way; in December, 1918, was very nervous; did not concentrate on his work, and hesitated in his expressions. A sergeant in the Hospital Corps with plaintiff at Contres, France, from April, 1918, to December, 1918, knew of his breakdown in May, 1918, and saw him practically every day until December, plaintiff complaining of not being able to sleep; nervous; "shot to pieces"; went to see a doctor almost daily; in October, 1918, had an alarming temperature and was sent to a temporary hospital. The cook of the same company saw him have a fainting spell at Brest, France, "just naturally keeled over." Another member of the company returned with plaintiff on the same boat and they were together at Camp Merritt and Camp Lewis. He testified that plaintiff's appetite was very poor; sometimes he refused meals and would go without anything to eat; his mind was not normal; sometimes he would not answer a civil question; he was slow in thinking and speech; something was radically wrong before his discharge; he was nervous and had crying spells; after his discharge, in going to the auditorium from the train in Portland he had a spell and could not keep formation and had to be helped along at different times. A doctor who examined him in December, 1922, diagnosed his ailment as lethargy encephalitis — "sleeping sickness." To a proper question he said: "I would think he probably had the epidemic, encephalitis, quite prevalent at that time." Another doctor testified: "Premised on that opinion I will state that subsequent to that date I do not believe he was able to continuously follow any substantial gainful occupation. Assuming the facts to be true as propounded in the hypothetical question, I will state that it certainly was founded upon conditions reasonably certain to prevail throughout his life."

There is testimony that in November,...