
    UNITED STATES v. LESHER. 
    
    No. 6795.
    Circuit Court of Appeals, Ninth Circuit.
    May 31, 1932.
    George Kenner, IT. S. Atty., and Livy Stipp, Asst. U. S. Atty., both of Portland, Or.
    James F. Alexander and B. A. Green, both of Portland, Or., and Alvin Gerlaek, of San Francisco, Cal., for appellee.
    Before S AWT ELLE, Circuit Judge, and KETEBER and ST. SURE, District Judges.
    
      
      Reliearing denied August 15, 1S32.
    
   KETEBEB, District Judge.

Reversal is sought of judgment on a verdict for plaintiff on an $8,000’ war risk insurance policy claim. It is alleged that the insured became totally and permanently disabled prior to March 31, 1919, by reason of encephalitis lethargua residusu The sole issue is alleged ¡error in overruling defendant’s motion for a directed, verdict.

Under the Seventh Amendment to the Constitution, a jury trial is guaranteed in a civil action; and that it is error to direct a verdict for defendant if there is any substantial evidence is stare decisis.

Tho testimony shows that plaintiff was employed from September,1920, to DecernT $62.50, September, 1920, to $188.97, ISTovemZ -inon j a x- 1 ir ’ ctnn.fí/1 ber, 1920, and at no time less than $99.64, , / i } • a x i i noo x which was paid m beptember, 1922, or a toxin^^nonoo • xl -A jl tal of $4,080.33 covering the period, and he . l 9 .,, -i ,f J, was intermittently employed thereafter until r\ x i i^ncr • £ £ £ n October, 1925, sometimes for four full ’ rm • i .xl x months. There is, however, evidence that plaintiff was assisted in his duties by his fellow 'workers and that but for such assistance he could not have performed. ■ ‘

m. t ¿o £ i • x*jan The comm^ding officer of pontiff’s company testified that m April and May of 1918, while going overseas, plaintiff was acting as ii j V j i x l i company clerk, and had a complete break- , J 9 down; was very nervous; did not carry on «j, 9, 9 . after that in a normal way; in December, - 0 ,. V , , ’ 1918, was very nervous; did not concentrate ,! 7 n l -x x j • l- • on his work, and hesitated m his expressions. A sergeant in the Hospital Corps with plaintiff at Centres, France, from April, 1918, to December, 1918, knew of his breakdown in May, 1918, and saw him practically every day until December, plaintiff complaining of not being able to sleep; nervous; “shot to pieces”; went to see a doctor almost daily; in October, 1918, had an alarming temperature and was sent to a temporary hospital, The cook of the same company saw him have a fainting spell at Brest, France, “just naturally keeled over.” Another member of the company returned with plaintiff on the same boat and they were together at Camp Merritt and Camp Lewis. He testified that plaintiff’s appetite was very poor; sometimes he refused meals and would go without anything to eat; his mind was not normal; sometimes he would not answer a civil question; he was slow in thinking and speech; something was radically wrong before his discharge; he was nervous and had crying spells; after his diseharge, in going to the auditorium from the train in Portland he had a spell and could not keep formation and had to be helped along at different times.. A doctor who examined him in December, 1922, diagnosed his ailinent as lethargy encephalitis — -“sleeping siekness.” To a proper question he said: “I would think he probably had the epidemic, encephalitis, quite prevalent ■ at that time.” Another doctor testified: “Premised on that opinion I will state that subsequent to that dat,0 1 d° not believe be was able to eontinu0Usly f°Uow ^ substantial gainful occupy tlon- Assuming the facts to be true as proP0™ded m the hypothetical question, I will íaíe tbat xt ceiTfcamly was founded upon eonditions reasonably certain to prevail tbroughou£ Ms life ”

^ ¿ testimony that in November, 1919> plaixitifP, “coming in” evenings, would 7 * & 9, , 110 down and did not want to go ont, and . • , ?. J rrwould burst out crying many times. His . . ,v r n • 7 , captain saw him at this time and said he was * * , much thinner, more hesitating in his speech, , , ° l and could not concentrate on any subject and n ((. „ •. , . , . had a “scary” look m his eyes, J

. . . Tbere 18 testimony of fellow workmen that he was nervous; acted queer and had spells; sometimes would go home at noon and his assistants would do the work: sometimes two ^ thre0 d a wek this happened; and-sometimes ^ woula not ¿ ^ ^ at \ £ ,. all. An assistant executive told one of them, o . ^ -•> , n • J a witness,-that plaintiff was an ex-service •, xl l i man and the boys were to help him if he ^ ^ . ■, , . 17 , A xl -x could not do his work. Another witness said: írCT. m _ i x l xl l . xi His W0lk was kept UP by the boys m the 0^ee » *

. • . At.hon^ hls f^lly^ad * W® ofalfost as a 0Md at tunes, help him put 1113 eoat cut 1x18 meat at meals> ete-

_ There is a connected chain of sequence yilh relation to conduct aiid actions and abil— to carry on covering the entire time from September, 1920, to December, 1923, during the'period he was carried on the pay rolls ¡received the compensation above stated, assistant agent for the S. P. & S. Co., speaking of plaintiff’s employment, said: “That does not signify he worked 53 days, ^ be came on in the morning and went to pieces we generally allowed him for a half, ^ay other boys took care of his work, We did this for Mr. Lesher. There was work available for him during the period of time tbese four years; he worked 287 days.”

Much other testimony of the same type character is in the record,

This ease, like all like eases, has its dif-Acuities. There is, however, a continuity of conditions related by the witness prior to his discharge by persons who were in close eon-tact with him, including his captain and “buddies,” who, by reason of position or employment, were peculiarly situated to observe him. And this condition continued long past his earning period. He was carried on the pay roll, but “that does not signify he worked. * * * The other boys took care of his work.” The testimony, of the specialist, predicated on disclosed conditions, including medical testimony of the earliest examination, tends to an ilhicidation of the disability; and that was for the jury’s consideration.

The court does not weigh the evidence, but considers whether there is any or sufficient evidence to sustain a verdict. See Ford v. United States (C. C. A.) 44 F.(2d) 754. And in war risk cases the most favorable construction should be given the evidence that is produced. Ford v. United States, supra. The trial judge must, in the exercise of sound discretion, determine whether upon the evidence produced a verdict can be sustained, not weigh the evidence. If there is evidence, it must be submitted; if not, it is pronouncedly his duty to direct a verdict. A mere guess or statement of a witness, even though a so-called medical expert, predicated upon no evidence or statement before the court to show continuity of condition covering the period of total permanent disability, is of no value. The trial judge can sa.y whether there is substantial evidence to support the hypothetical question, and, therefore, the conclusion of the expert. In the instant ease there is ample evidence, if believed by the jury. That was its function, and its verdict must bo sustained.

Affirmed.  