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McDanile v. United States.

December 6, 1939

MCDANILE
v.
UNITED STATES.



Appeal from the District Court of the United States for the Eastern District of Illinois; Fred L. Wham, Judge.

Author: Kerner

Before EVANS, TREANOR, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

Appellant was granted war risk yearly renewable term insurance in the amount of $10,000, payable in the event of death or total permanent disability occurring while the contract was in force. He entered the service on April 29, 1918, was honorably discharged on June, 18, 1918, and premiums were paid on the policy to and including July 1, 1918. He was entitled to the receipt of unpaid compensation under the provisions of Sec. 305 of the World War Veterans' Act, as amended, 38 U.S.C. § 516, 38 U.S.C.A. § 516, up to December 1, 1920, in a sufficient amount to revive his policy, if he became totally and permanently disabled subsequent to the lapse of his policy before December 1, 1920.

Appellant filed the complaint in this action on September 8, 1936, seeking to recover on the policy for a total permanent disability which he alleges occurred to him on or prior to June 18, 1918. He alleged in his complaint that during the life of the policy he became totally and permanently disabled as a result of "chronic prenchymatous nephritis; kidney trouble; heart trouble; general weakness and general disability."

THe Government by its answer denied that appellant become totally and permanently disabled during the life of the insurance contract as the result of any disease.

The cause was submitted to the court for trial with a jury. It determined the issues in favor of appellee, entered a finding that the appellant was not at any time both totally and permanently disabled although at certain times he had been totally disabled, found that at all times since June 1918 he has suffered a partial disability which in all probability will continue throughout his life, and rendered judgment against appellant who now prosecutes this appeal.

On this appeal appellant contends that the court found contrary to the clear weight of the evidence, while, on the other hand, the appellee contends that the trial court's decision was clearly correct, amply supported by the evidence, and that the only question before us is whether the finding and judgment were clearly erroneous.

Briefly stated, the pertinent facts are that before his enlistment appellant was a railroad section hand, with some experience as a milk wagon driver. In the army, after a typhoid inoculation, he became ill, and was taken to a hospital where he remained until his discharge from military service on June 18, 1918. Upon returning home he was placed under the care of a physician, who has treated him from time to time.

In April or May of 1920 he moved to a farm, where he has since lived, his wife managing the farm with the aid of their children. At the time of his enlistment he was twenty-six years of age, married, and father of one son; since that time he has had nine other children.

There was testimony to the effect that his legs were swollen; that he was afflicted with spells occurring at intervals not longer than three weeks apart and lasting an hour or two on each occasion; that his eyesight was such that he could not recognize people four or five feet away; and that he was unable to do any work.

Dr. C. W. Johnson testified that he began to treat the appellant shortly after his discharge from the army and that he has treated him ever since, up to February, 1939, for angina pectoris, rheumatism, and valvular heart disease; that about one year after his return from the army chronic nephritis was discovered, which gradually became worse; that the speels testified to by the lay witnesses were caused by the attacks of angina pectoris, the attacks coming at five-days to three-weeks intervals, and that in the last five or six years he has treated appellant for one or two attacks; that appellant was able to take care of the stock, do the light work and supervise the farming, but that the valvular heart disease makes it dangerous for him to perform hard manual labor; and that the heart disease and nephritis are permanent.

Dr. F. B. Pearce testified that he treated appellant on Frbruary 15, 1929 for arthritis, heart disturbance, and kidney trouble; that appellant was in an army hospital from April 23, 1931 to May 7, 1931, suffering with pain in the back, swelling of the feet and body, and heart trouble; and that he was of the opinion appellant was not capable of performing any manual labor.

The record also discloses the testimony of twelve lay witnesses to the effect that the spells rendered appellant unconscious for twenty to thirty minutes, that they never saw him perform manual labor, but ...


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