United States v. Spaulding, 7137.

• Decision Date: 01 February 1934
• Docket Number: No. 7137.,7137.
• Citation: 68 F.2d 656
• Parties: UNITED STATES v. SPAULDING.
• Court: U.S. Court of Appeals — Fifth Circuit

68 F.2d 656 (1934)

UNITED STATES v. SPAULDING.^*

No. 7137.

Circuit Court of Appeals, Fifth Circuit.

February 1, 1934.

George Earl Hoffman, U. S. Atty., of Pensacola, Fla., and Will G. Beardslee, Sp. Asst. to Atty. Gen., for the United States.

Philip D. Beall, of Pensacola, Fla., for appellee.

Before BRYAN, SIBLEY, and WALKER, Circuit Judges.

SIBLEY, Circuit Judge.

Irah D. Spaulding sued and recovered on a policy of war risk insurance as for a total permanent disability arising before the lapse of his policy on November 30, 1923. On this appeal by the United States the sole error insisted on is the refusal to direct a verdict against the plaintiff. In broad outline the evidence tended to show that Spaulding enlisted in the navy in 1917, and soon became an aviator. In June, 1920, he was taken with severe pains in the lower abdomen. Albumen was found in the urine and many casts, both hyaline blood and cellular, supposed to be due to stone in left ureter but no stone passed. In September there was a return of pain and again in January, 1921. X-ray then showed stone in left ureter. In August on another attack albumen and casts were again found present. He was operated on and discharged from hospital November 7, 1921. A week later he was in an aeroplane crash, receiving severe injuries, especially to his face, teeth, and jaw. A few months later he had developed stomach trouble, his teeth had formed abscesses, and his left antrum became infected. In May, 1922, he was diagnosed as having chronic parenchymatous nephritis, or Bright's disease. He was honorably discharged as unfit for the service in June, 1922, and applied for compensation but did not claim under his insurance policy. He continued to have attacks of pain like kidney colic, and the infected antrum was operated on again in 1923, 1925, and 1927. In 1927 he applied to reinstate his lapsed insurance, but in October, 1928, was examined and classed as a poor risk and as having chronic nephritis with hyaline casts and blood cells in urine. Examination in 1929, 1930, and 1931 showed the same thing and a fallen kidney and kinked ureter. Three physicians for the government, while stating that the hyaline casts, albumen, and blood cells present in urine since 1920 showed chronic nephritis which was incurable, they were of opinion that Spaulding was at no time totally disabled from carrying on work. Spaulding testified that for about nine months after his discharge from the navy he could not work at all, then took vocational training for fourteen months, sold automobiles for about a year in 1924 and 1925, but could not work at it continuously, having to take codeine to relieve severe pains in his back and head which were aggravated by working, and that he was under treatment for them all the time by Dr. Quina, who operated on his antrum in 1922, every day for a year, then three or four times a week for the next two years, and later every other day until 1929. He got $125 per month selling cars in 1925, and worked as a construction...