United States v. Wilfore, 414.

• Decision Date: 05 July 1933
• Docket Number: No. 414.,414.
• Citation: 66 F.2d 255
• Parties: UNITED STATES v. WILFORE.
• Court: U.S. Court of Appeals — Second Circuit

66 F.2d 255 (1933)

UNITED STATES v. WILFORE.

No. 414.

Circuit Court of Appeals, Second Circuit.

July 5, 1933.

Harry B. Amey, U. S. Atty., of Burlington, Vt., and Davis G. Arnold, of Washington, D. C., and A. W. De Birny, of Burlington, Vt., Attys. Veterans' Administration, for the United States.

Marcell Conway, of Barre, Vt. (Gelsie Monti, of Barre, Vt., on the brief), for plaintiff-appellee.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

This is an appeal by the government from a judgment in favor of Floyd E. Wilfore, who brought an action to recover upon a war risk insurance policy. The principal assignment of error is that the trial judge improperly refused to direct a verdict in favor of the government because there was no evidence from which a jury could find that the plaintiff was suffering from a permanent and total disability at the time that his policy of insurance lapsed.

The defendant, by its answer, admitted that the policy was in force on May 2, 1919, the date when the plaintiff was discharged from military service. The next payment on the policy fell due on June 1, 1919, and the plaintiff, by the regulations of the Veterans' Bureau, was allowed thirty-one days of grace in which to make payment. The plaintiff made no payments after his discharge, and accordingly his policy lapsed at midnight July 2, 1919. In order to support a recovery on the policy, it must be shown that, at the time it lapsed, the plaintiff was permanently and totally disabled.

The plaintiff enlisted in the army on June 19, 1917. While in service in France, he was gassed and contracted pneumonia, influenza, and spinal meningitis. He was recovering from the disease last mentioned at the time of his discharge. He testified that at the time of his discharge, and ever since, he has suffered from weakness and pain in his back, and that it caused him acute discomfort to bend over and straighten up, or to sit in one position for any length of time. He further stated that shortly after his discharge he consulted a physician, who advised him to wear an abdominal belt and prescribed a diet, and that he has ever since worn a supporting belt when working. Since the termination of his military service, he has worked intermittently as machinist, carpenter, and mail carrier.

Dr. R. G. Hamilton testified that he gave the plaintiff a physical examination for admission to the civil service in December, 1921, and at that time he found the plaintiff suffering from chronic nephritis and sacroiliac and sacral-lumbo trouble. Other medical testimony established that a "sacroiliac condition" is an affliction of the pelvis which consists of a loosening of the ligaments which hold together the ilium and the sacrum, and which results in a hampering of mobility and a pain in the back. Dr. Waldo R. Harkness testified that he examined the plaintiff in 1932, a few months before the trial of the case, and found the plaintiff suffering from the same conditions. There was testimony from which the jury might find that the sacroiliac ...