28 F.2d 828 | 9th Cir. | 1928
This is a writ of error to review a judgment for the defendant on a verdict directed by the court. The plaintiff in error entered the military service of the United States March 20, 1918, and was honorably discharged at Washington, D. C., July 16,1919. While in the military service he applied for and received the customary war risk insurance policy in the sum of $10,000, which was permitted to lapse
The complaint alleged that while in the military service of the United States the plaintiff in error contracted ankylosis of the right hip joint, together with traumatic neurosis, and from said disability there has developed, as an approximate outgrowth, hysteria with attacks; ankylosis bony, complete, right hip, postoperative; cicatrix right hip, postoperative, atrophy of muscles right buttock and right thigh; scolosis, dorsal compensating; and there was testimony tending to prove that this condition was caused by an injury to the hip and an ensuing operation. In directing a verdict for the defendant the court below ruled that the testimony was sufficient to warrant a finding of total permanent disability and that such disability resulted from an injury to the hip, but that it was a mere matter of guesswork and speculation as to when or how the injury to the hip was incurred.
We fully agree with the court that the testimony was sufficient on the question of total permanent disability, and that the question as to when, where, or how the injury to the hip was incurred was largely a matter of guesswork and speculation; but the burden was only on the plaintiff to prove total permanent disability, and that such disability arose during the life of the policy. Mere inability on his part to prove the exact time and place of the injury to the hip was not fatal to his ease if the jury was warranted in finding from the testimony that the injury and the accompanying disability occurred and existed during the life of the policy, and we think the testimony was sufficient to warrant such a finding. After August 4, 1919, the plaintiff in error was confined in hospitals for nearly a year and a half, and there is ample warrant for a finding of total permanent disability from and after that date. We think also the testimony would warrant a finding of total permanent disability at a much earlier date and while the policy was in effect. His condition and symptoms after August 4, 1919, did not differ materially from his condition and symptoms prior to that date, and if conditions existing on and after August 4 were attributable to the injury to the hip, might not the jury well find that similar conditions existing prior to that date arose from the same cause.
There was no evidence to compel a finding that the plaintiff in error received any injury between the date of the expiration of the policy and August 4, if indeed the testimony would warrant such a finding. While in the hospital at Yakima or Tacoma the
Prom a full consideration of all the testimony, we are therefore of opinion that the court erred in directing a verdict for the defendant, and for this error the judgment is reversed and the cause is remanded for a new trial.