United States v. Sullivan, 7555.

• Decision Date: 21 January 1935
• Docket Number: No. 7555.,7555.
• Citation: 74 F.2d 799
• Parties: UNITED STATES v. SULLIVAN.
• Court: U.S. Court of Appeals — Ninth Circuit

74 F.2d 799 (1935)

UNITED STATES v. SULLIVAN.

No. 7555.

Circuit Court of Appeals, Ninth Circuit.

January 21, 1935.

J. A. Carver, U. S. Atty., of Boise, Idaho, Will G. Beardslee, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst. to the Atty. Gen., and Armistead L. Boothe, Atty., Department of Justice, of Washington, D. C.

Jess Hawley and Oscar W. Worthwine, both of Boise, Idaho, for appellee.

Before WILBUR and GARRECHT, Circuit Judges, and NORCROSS, District Judge.

WILBUR, Circuit Judge.

Walter S. Sullivan, a veteran of the World War, claims that he became totally and permanently disabled in the month of August, 1932. He was insured under a five-year renewal of a five-year convertible term policy which had been issued by the government on July 1, 1927, for the period of five years, which policy had been continued in force for an additional five years on July 1, 1932. The veteran has paid his insurance premium regularly, and at the time of the bringing of the action the policy was still in force by reason of such payments.

The veteran testified that while in France a heavy wagon carriage having rubber tires ran over one of his feet, and that as a result he has suffered continuously from arthritis which has steadily progressed until in August, 1932, when he claims he became totally and permanently disabled by reason of multiple arthritis and pansinusitis, rhinitis, pharngitis, and neuritis. The appellant has been conducting farming operations ever since his discharge from the Army on June 19, 1919.

The appellant contends that its motion for directed verdict should have been granted because of appellee's work record. It will be observed that in this case we have an entirely different situation from that which ordinarily confronts a court and jury in an action upon a war risk insurance policy. In most of these cases the veteran ceased to pay the premiums on his insurance policy at the time of his discharge from the Army, and relies for recovery entirely upon the proposition that at that time he was totally and permanently disabled. Evidence as to his condition after the lapse of the policy is pertinent upon that issue. Under such conditions, the record of long-continued labor at a substantially gainful occupation has defeated the claim of the veteran because it demonstrated that he was not in fact totally disabled at the time he did such work, and consequently could not have been permanently disabled at any prior time. In the case at bar, however, the work record is only significant as bearing upon the progress of the arthritis and other diseases from which the veteran suffered and consequently upon the degree of the impairment of the veteran's...