71 F.2d 860 | 10th Cir. | 1934
This is a suit to recover upon a war risk insurance contract. A jury was waived. The court found that the insured became totally and permanently disabled on June 1, 1920, while the policy was in force and effect.’ Judgment was rendered in his favor, and this appeal followed.
The finding of total and permanent disability is challenged. We are told that it Í3 not supported by substantial evidence. Under the often-repeated rule, the burden rested upon the insured to show by substantial evidence that he became so disabled while the policy was in force. United States v. Thomas (C. C. A.) 64 F.(2d) 245; United States v. Ivey (C. C. A.) 64 F.(2d) 653; United States v. Pearson (C. C. A.) 65 F.(2d) 996; Thorne v. United States (C. C. A.) 66 F.(2d) 230; United States v. Harrell (C. C. A.) 66 F.(2d) 231; United States v. Derrick (C. C. A.) 70 F.(2d) 162.
Premiums were p aid to May 31,1920. The grace period of thirty days continued the contract in force throughout June of that year. If, therefore, insured became totally and permanently disabled on June 1st, as found by the court, the judgment was right. We review the reeord to ascertain whether it discloses substantial evidence to support that finding. Insured testified that he was strong and weighed about 180' pounds before entering the service, and that he weighed only 155 pounds when discharged; that he served overseas, his duties being to transport wounded soldiers from first aid stations fit the front to field hospitals; that he was in five different offensives; that he was gassed several times, the worst being at Verdun; that he was continuously in gassed areas on the road at night; that he did not enter the hospital for treatment, but received treatment from
Doctor Noble, a qualified and practicing physician at Indianapolis, testified that he had known the insured since he was a hoy; that he was in good health prior to enlisting in the army; that when he returned he was 30 or 40 pounds underweight; that the witness examined the insured in June, ISIS) (soon after his return from service and before payment of premium ceased); that he was nervous, with marked tremor and pulse slightly accelerated; that he had afternoon temperature, coughed, and was quite emaciated; that his stomach was inactive, but his chest was full of signs of tuberculosis. Predicated upon the examination and from study of clinical progress of the condition, he said that in his opinion the insured had active pulmonary tuberculosis and was totally and permanently disabled at the time the examination was made. Doctor Stalker, another practicing physician in Indianapolis, testified that he examined the insured in 1919 or 1920; that he used a stethoscope, but did not make a sputum test; that ho diagnosed the case as one of active tuberculosis, and that insured was totally and permanently disabled at that time. Doctor Gekler, a specialist in tuberculosis at Albuquerque, N. M., testified that he examined the insured in the spring of 1922 (obviously very soon after his arrival there); that he found active tuberculosis involving between' one-half and two-thirds of each lung, sputum positive; that insured immediately entered a sanatorium and remained there a year or thereabout; that he ran temperature, had moisture, pulse accelerated, and was kept on a strict bed routine; that at the time of the first examination, ho was totally and permanently disabled; that it was impossible to tell from that examination how long the condition had previously existed; that in view of the insured’s condition at that time, he would accept without question the finding of a reputable physician stating that ho had active tuberculosis in 1919 and 1920.
No testimony was offered by defendant. The existence of these facts is unassailed. Their sufficiency to establish total and permanent disability is challenged. We are unable to say that the testimony thus reviewed is insufficient to sustain the finding. It will be observed that the employment in question was spasmodic. Although the work was light in character, it was punctuated with interruptions caused by physical disability. The insured wasi in bed for three months at one time, and he was forced to lay off at frequent intervals. He was thin, emaciated, and underweight throughout the period. Immediately after terminating that service — in consequence of poor health — -he was in bed again for several weeks. The testimony of two physicians, not rebutted by other testimony or physical facts, concurs to the effect that he was totally and permanently disabled in 1919, and the work record does not overthrow that testimony because one may work spasmodically, with frequent interruptions, necessitated by physical disability, and still be unable to follow continuously a reasonably gainful occupation. It is not necessary that he be bedfast in order to constitute total and permanent disability within the purview of a war risk insurance contract. Nicolay v. United States (C. C. A.) 51 F.(2d) 170; United States v. Rye (C. C. A.) 701 F.(2d) 150.
The remaining question is whether the suit was instituted too late. The complaint was filed on September 28,, 1932. A motion was lodged to dismiss it because the cause of action was barred by the statute. The record fails to indicate what disposition was made of the motion. An amended complaint was filed on December 10, 1932¡, in which it was alleged that the claim was filed with the Vet-
The judgment is affirmed.