UNITED STATES v. HOOPER, 73 F.2d 665

WALKER, Circuit Judge. This was an action, brought in March, 1932, on a war risk insurance poliey, which by the payment of premiums was not kept in force after December 31, 1919.

Appellant’s complaint alleged that during Hie life of the poliey sued on he became “totally and permanently disabled from following continuously any substantially gainful occupation as a result of the following diseases, ailments and injuries: A gunshot wound in the left arm or shoulder as a result of which the muscles of said left arm or shoulder have perished, also trench feet, as a result of which plaintiff has lost the large toe of his right foot and the other toes of said right foot have become stiff and practically useless, and the toes and bones of said left foot have become stiffened and deformed and practically useless.” The allegations of the complaint were put in issue.

Upon the conclusion of the evidence the court refused to give the following written charge to the jury, requested by the defendant: “If you believe the evidence in this ease, you must find for the defendant.” In a battle in France in October, 1918, the appellee received a gunshot wound in his left shoulder, in consequence of which, while he lay on the battlefield before he was removed therefrom, he was exposed to cold, which caused injuries to his feet, for which ho was treated in hospitals, the great toe of his right foot being amputated, and trench feet developed, causing the joints of several toes on both feet to be stiffened.

He had trench feet when he was honorably discharged from the Army in November, 1919, and continuously since that time. Prior to entering the Army, appellee was a farmer. Upon his discharge from the Army he went to the home of a brother, who is a farmer, and lived there from that time until the time of the trial. During that time, because of the condition of his feet, ho was unable to do the usual work of a farmer, but has helped about the farm, doing some work at times. He was twenty-five years of age when he was discharged from the Army. His school education did not extend beyond the second school grade.

A statement signed by him, attached to the report of a board of medical officers which recommended his discharge for disability incurred in the line of duty, showed that ho had had explained to him the re-oducational and vocational systems, but that he did not care to take advantage of them while in the Army, hut requested that ho be discharged. Since his discharge from the Army, appellee has received a pension or disability compensation from the government.

In this court it was admitted in argument by counsel for the appellant that evidence adduced supported a finding that appellee has been permanently disabled from earning a living in his prewar occupation of farming, or in any other occupation requiring him to be constantly on his feet. No evidence adduced tended to prove that the gunshot wound received by the appellee had any permanently disabling effect.

The controlling question in the case is whether any evidence adduced supported a finding that during the life of the policy sued on appellee became totally and permanently disabled from following continuously any substantially gainful occupation, as alleged in his complaint. Two physicians were witnesses in the trial, one for the appellee and one for the appellant.

The physician w!k> was a witness for the appellee in his direct examination, after stating that he examined appellee about three or four months before the trial and treated him several years ago, and describing what he observed, testified that appellee is permanently and totally disabled as far as any work that would require him to be constantly on his feet.

On cross-examination the witness stated that appellee might be able to be a watchman, or to run an elevator, or a street ear, where he is in a sitting position and pulls the lever, or an automobile, or he could be a lunch counter cashier, if he has sufficient education.

The other physician testified as to an examination of appellee by the witness in 1922, and finding that appellee had severe trench feet permanently disabling him 15 per cent., and disabling him for some occupations more than others, and that appellee could not hold out doing a full day’s work on his feet, and could not do any farming at a 11 successfully. The testimony of neither of the physicians, nor that of any other witness, indicated that appellee was mentally deficient or at aE lacking in intelligence or that he was physically impaired otherwise than by reason of the condition of his feet.

There was no evidence inconsistent with findings that appellee’s failure, since he was discharged from the Army, to earn a living by work was due, not to any permanent disability, but to his choosing not to follow a gainful occupation, other than farming, for which he was qualified, or, if when he was discharged from the Army he was not qualified to follow such other occupation, electing not to make the effort to become qualified to follow a substantially gainful occupation for the following of which he was mentally and physically capable of becoming qualified, and that appellee, if he had chosen to do so, could continuously have followed a substantially gainful occupation not requiring him to be constantly on his feet.

Appellee was not entitled to recover unless he proved the essential elements of the cause of action alleged, and the lapse of more than twelve years after the policy ceased to be in force before the suit was brought put on him the burden of supporting the claim asserted by clear and satisfactory evidence. Lumbra v. United States, 290 U. S. 551, 54 S. Ct. 272, 78 L. Ed. 492; O’Quinn v. United States (C. C. A.) 70 F.(2d) 599; Proechel v. United States (C. C. A.) 59 F. (2d) 648.

Proof that one, by reason of a foot malady which prevents his being on his feet constantly, is permanently disabled from following the occupation of farming, does not support the conclusion that he is totally and permanently disabled from following continuously any substantially gainful occupation which does not require him to be on his feet constantly. The evidence fell short of having any tendency to prove that appellee’s disability was such as to make it impossible for him throughout his life to follow continuously any substantially gainful occupation. The above-mentioned ruling was erroneous.

The judgment is reversed.