United States v. Meserve, 6212.

• Decision Date: 27 October 1930
• Docket Number: No. 6212.,6212.
• Parties: UNITED STATES v. MESERVE.
• Court: U.S. Court of Appeals — Ninth Circuit

44 F.2d 549 (1930)

UNITED STATES v. MESERVE.

No. 6212.

Circuit Court of Appeals, Ninth Circuit.

October 27, 1930.

George Neuner, U. S. Atty., and Livy Stipp, Asst. U. S. Atty., both of Portland, Or., and William Wolff Smith, Gen. Counsel, U. S. Veterans' Bureau, James T. Brady, Asst. Gen. Counsel, U. S. Veterans' Bureau, and Edward Irvin Burns, Atty., U. S. Veterans' Bureau, all of Washington, D. C.

Hugh E. Brady, of LaGrande, Or., and Wilber Henderson, of Portland, Or., for appellee.

Before DIETRICH and WILBUR, Circuit Judges, and WEBSTER, District Judge.

WEBSTER, District Judge.

Appellee brought suit on a policy of war risk insurance held during his lifetime by her husband and intestate, George B. Meserve. From a verdict and judgment in her favor, the government has appealed. The sole question presented for decision is whether there was sufficient evidence of total and permanent disability to warrant the submission of the case to the jury. Meserve was honorably discharged from the army on August 19, 1919, and the insurance policy in suit lapsed for nonpayment of premium on October 1, 1919. It was necessary, therefore, for appellee to establish at the trial that the insured became totally and permanently disabled on or prior to the last-mentioned date. The complaint alleges that the insured contracted tuberculosis while in the service of the government and by reason thereof was totally and permanently disabled from and after August 19, 1919, the date of his discharge, and that thereafter on October 21, 1928, he died of that disease. Total disability within the meaning of the policy is any disability of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation, and such disability is deemed to be permanent whenever it is founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering from it. The principal insistence of the appellant is that the unchallenged work record of the insured after his discharge from the service shows conclusively that Meserve was not permanently and totally disabled until long after the expiration of his insurance. Prior to entering the military service the insured was employed as a freight brakeman on the Oregon-Washington Railroad & Navigation Company, and very shortly after his discharge he returned to that employment and worked therein from September 2, 1919, until October 28, 1921, a period of 26 months, and thereafter worked irregularly and intermittently as a taxicab driver during a part of 1922 and 1923. During the 26 months in which he was in the service of the railroad company in the capacity of brakeman he received in wages $5,275.06. His rate of pay during this time was $5.59 per day. Had the insured worked eight hours per day during every day of this period at $5.59 per day he would have earned $4,404.92. Allowing time and a half for overtime it would have been necessary for the insured to have worked approximately 104 overtime days during the 26 months' period in order to account for the difference between the total wages actually received by him and the amount of his straight wages for an eight-hour day. It should be noted in this connection that the insured's compensation was based on either an eight-hour day or 100 miles of travel, whichever was the greater. This testimony, standing alone and unexplained, would seem to indicate rather conclusively that the insured during the 26 months' period referred to was not totally and permanently disabled. From the record before us, however, it will not do to consider this proof abstractly, but there must be taken into consideration additional facts and circumstances which we believe shed material light upon the actual condition of the insured. The question is not what the railroad company's pay roll shows; it is what was the physical condition of the insured at the time. The record facts have no mysterious convincing force which forecloses their being explained and ameliorated by the proof of attendant and surrounding circumstances and conditions. There was substantial evidence submitted in behalf of the appellee tending to establish the following facts:

After entering the military service Meserve was sent to Siberia and remained there from September until February of the following year, when he returned to San Francisco and entered the Letterman General Hospital. While in Siberia he became ill, suffering probably from pneumonia, and it is shown that this illness rendered him susceptible to pulmonary tuberculosis. He remained in the hospital undergoing treatment until his discharge therefrom on August 6, 1919, at which time, by direction of the commanding officer in charge of the hospital, a letter was sent to the insured's mother, which in part reads: "I beg to inform you that your son is now about to be discharged and every effort made for his welfare. His condition at the present time I am creditably informed is an arrested form of tuberculosis, which under favorable conditions of climate and work such as has been outlined for him would bring a return to health."

It will be seen, therefore, that Meserve was afflicted with tuberculosis at the time of his discharge from the army. In May, 1919, Meserve was released from the hospital for a few days on furlough and returned to his home. At that time he was much thinner than when he left for the service and looked "peaked." He was stoop-shouldered and had a cough, suffered from shortness of breath, and wanted to rest practically all the time. He was suffering from stomach...