United States v. Steadman
| Decision Date | 30 November 1934 |
| Docket Number | No. 1008.,1008. |
| Citation | 73 F.2d 706 |
| Parties | UNITED STATES v. STEADMAN. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John S. Boyden, Asst. U. S. Atty., of Salt Lake City, Utah, and Thomas E. Walsh, Atty., Department of Justice, of Washington, D. C. (Dan B. Shields, U. S. Atty., and Edgar C. Jensen, Asst. U. S. Atty., both of Salt Lake City, Utah, Will G. Beardslee, Director, Bureau of War Risk Litigation, of Washington, D. C., and Randolph C. Shaw, Sp. Asst. to the Atty. Gen., on the brief), for the United States.
J. M. Lampert, of Boise, Idaho (B. W. Oppenheim and J. B. Musser, both of Boise, Idaho, on the brief), for appellee.
Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.
Appellee enlisted in the military service March 2, 1918, saw service in France, was in hospital for flu a short time, was honorably discharged May 5, 1919, and returned to his father's home in Utah that month. He recovered judgment on a war risk insurance policy which expired on July 1, 1919, unless he was then totally and permanently disabled from following a gainful occupation. He alleged he was so disabled. Appellant denied it. The burden was on him to establish that claim. At the close of the evidence appellant moved for a directed verdict in its favor. The motion was denied and exception saved. The question here is whether there was substantial evidence to sustain the verdict in his favor.
A day or two after appellee returned home he tried to work on a ditch. In stooping over he got dizzy and felt faint. That happened more than once. He quit, and sent for Dr. Alley on May 29, 1919. Dr. Alley testified that appellee was under his care from that time for about a year suffering from "acute articular rheumatism with complications of endocarditis and nephritis;" that with articular rheumatism there is always some heart involvement; that appellee was bedfast for about six months and the balance of the time he was in the house sitting around, up and down, unable to work; that when he first examined appellee he had acute articular rheumatism which meant that it had come on suddenly; that he had remained in that condition since that time, but the severity had varied, there were intermissions; that he had treated appellee since from time to time, the home calls being rarer in number than the office calls; that he found decompensation of appellee's heart the first time he treated him.
Dr. Quick, who is Dr. Alley's professional partner, was called to see appellee in October, 1922, for the first time. He found him suffering from acute rheumatic fever and arthritis, also endocarditis, which is an inflammation of the lining of the heart necessitating restfulness, also swollen and reddened joints accompanied with pain in his hands, ankles and wrists. He had treated appellee at times since then. He had an attack of flu and appendicitis. Appellee's condition is now more serious than it was in 1922. He treated him in July, 1923. He treated him as late as the winter of 1932. In 1923 was the only time he showed any decompensation of the heart. All other times the heart was compensating. He said that with a compensating heart there was nothing that would prevent a man from following a gainful occupation providing his condition did not flare up; with his particular type of heart a person does not get along well when he overdoes any.
Physical examinations made by other physicians and surgeons disclose these facts: Appellee stated in writing when he was examined for enlistment that he had rheumatic fever about seven years before that date. At time of discharge he stated in writing that he had no reason to believe that he was then suffering from the effects of any disease, nor had any disability or impairment of health, and it was certified by a member of the medical corps at that time he had been given a careful physical examination and he was found to be physically and mentally sound and to no per cent disabled.
Dr. Critchlow examined appellee at Salt Lake City June 15, 1931. He reported that appellee complained of rheumatic pains in joints, occasional pains in region of heart and nervous and dizzy spells. He found that spine and joints were then movable without pain; that there was no swelling, and his diagnosis was: Valvular heart disease, chronic, mitral stenosis, and insufficiency, rheumatic, compensated. Dr. Paul made the same report as of that date relative to appellee's heart. Dr. Ossman, an orthopedic medical examiner, examined him January 18, 1923, and reported: Mild stiffness and tenderness with manipulation of wrists, elbows, shoulders, knees and hips. Mild crepitation elbows, shoulders and knees. No joints swelling, nor local heat at present. His diagnosis was: Arthritis, chronic, rheumatic, multiple. Dr. Ossman examined him again in June, 1929, and reported that physical examination showed no objective findings of rheumatism. All joints freely movable. No swelling or local heat, and there was no complaint except soreness in hands and fingers. Dr. Ossman examined him again May 22, 1930, and found there were no limitations of motions. Fingers, wrists, elbows and shoulders appeared normal. Back motions complete without pain. Hips, ankles, feet and toes apparently normal with no loss of motions. Knees also appeared normal but complained of painful motions, which, however, are not limited. Diagnosis: Arthritis, chronic, multiple, rheumatic. In the summer of 1930 appellee went to the Veterans' Hospital at Boise, Idaho, and was there examined by a board composed of three members. The diagnosis there as to his heart and rheumatic condition was substantially as at other examinations that have been stated and of the two physicians who testified for him.
There can be no doubt that appellee's attempts to do manual labor immediately after his return home in May, 1919, was followed by serious illness, rheumatism and heart involvement, for quite a while. There is but little in the record as to his activities until March, 1921. He testified that he was under Dr. Alley's care for eighteen months after May 29, 1919. He had pain at times in his joints and about his heart, and that continued up to the winter of 1920-21. But he recovered and was active in many ways. The months and years subsequent to March, 1921, and what he thereafter did must have attention.
In March, 1921, appellee and his younger brother drove his father's sheep to the range about Soda Springs, Idaho, and stayed with them there until September or October of that year. He was in charge. He rode horseback part of the time. Sometimes he would get dizzy. During the winter of 1921-22 he lived with his father. There were times when he couldn't milk the cows on account of swelling in his fingers. He helped some with the chores. In March, 1922, he again helped take his father's sheep to the range for the summer. He was in bed ten days at Soda Springs and called a doctor. When he was on the range in 1921 he met his future wife at Star Valley, Wyoming. They went out together during that summer, and she observed nothing unusual in his physical condition. In 1922 while on the range he went to see her in July. He got supplies there for the sheep. When he came there in 1922 he was sick, looked pale, and the two went together to his father's home in Utah, where they were married August 16, 1922. Within a week thereafter he and his wife went to a small place owned by his uncle, and they stayed there until February, 1923. He did some farm work there and received wages. In February, 1923, he rented an 80-acre farm from his father, remained there until December, 1926, operating that farm for four seasons. His father got half of the hay and two-thirds of the grain as rental. He paid a hired man $75 a month. It was an irrigated farm. Appellee helped to irrigate and to put in the crops. He did some plowing, harrowing and planting when he was able. He milked when he was able. He did chores. If he got his feet wet irrigating he would be down two or three days. He couldn't pitch hay throughout the day. He tried to, but would get exhausted. He got sick the summer of 1923, and an organization of his church came in and harvested his crop. Again in 1924, 5 and 6 he tried to irrigate and to do various things on the farm. He would get dizzy cleaning the ditch. At times he couldn't milk on account of his joints being stiff. On different occasions he had the doctor and was taking medicine.
In December, 1926, appellee moved to the Stillman ranch, 160 acres, and remained there until September, 1929. While there he was hired to run that ranch on a salary of $90 a month, and he received that salary for thirty-three months. He did some irrigating on that ranch, but at times would lie down on account of his heart. About 1,500 of Stillman's sheep were there in his charge. It was his job to see that the place was irrigated, the crops harvested and the sheep cared for. He had authority to hire extra men during the busy season. He was in complete charge. Occasionally he ran a mower. He did some plowing. His wife testified that heavy physical labor affected him; that she had put on overalls and helped him pitch hay because he couldn't stand it. At times he drove a team, but it was his business on that ranch to boss the job, to act as an overseer.
His father testified that he rented the 80-acre ranch to appellee because it was too big a job for him to operate it; that he had other business to look after. Later his father sold him about 200 sheep at $10 or $11 a head, and appellee paid him for them.
When appellee left the Stillman ranch in September, 1929, he rented a forty-acre farm of...
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...v. Pet Milk Co., 7 Cir., 108 F.2d 974, 976; Woelfle v. Connecticut Mutual Life Ins. Co., 8 Cir., 103 F.2d 417, 419; United States v. Steadman, 10 Cir., 73 F.2d 706, 709. On the other hand, the testimony of the defendants' three medical witnesses, two of whom had never even examined the plai......