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UNITED STATES v. HOBAKER.

No. 6111.

Circuit Court of Appeals, Seventh Circuit.

June 12, 1937.

Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst, to Atty. Gen., Keith L. Seegmiller, Atty., Department of Justice, of Washington, D. C., and Howard L. Doyle, U. S. Atty., and James P. Dillie, Asst. U. S. Atty., both of Springfield, 111., for the United. States.

Joseph O. McKiernan, of Chicago, 111., and Howard C. Knotts, of Springfield, 111., for appellee.

Before EVANS and SPARKS, Circuit . Judges, and LINDLEY, District Judge.

EVANS, Circuit Judge.

Does the evidence support the finding which the District Court made, that appellee was totally and permanently disabled June 3, 1919, when he was honorably discharged from the United States military service ? This is our only question.

Appellee, a young man of health and strength, enlisted in 1917, saw service, contracted amoebic dysentery, was discharged *8in 1919, failed thereafter to pay his insurance premiums, grew physically worse from the aforementioned disease, and finally became permanently and totally disabled. These facts are not seriously disputed.

Neither he, nor the medical men who treated him, realized for years that he was suffering from amoebic dysentery, when he was in the service or when he was discharged. His work record after his discharge is that of a worthy, ambitious youth, who made a distinctly commendable effort to earn a living. The same record discloses blind and unintelligent groping by the medical practitioners who failed to diagnose or properly treat the veteran for the illness from which he suffered. There is no conflict over most of the facts, and we may assume as conclusively established, that appellee’s physical troubles are traceable to amoebic dysentery contracted while he was in the service. Such conflict as exists arises over the extent of his disability when he ceased to pay premiums back in 1919.

Each side has advanced rather strong and persuasive facts to support its position. If this fact issue were one for us to determine as an original proposition,' we could readily justify a finding that appellee was not totally disabled when discharged from the service. But the District Court found otherwise — found that he was totally and permanently disabled June 3, 1919. His hospital record rather persuasively supports this finding. He was in the hospital much of the time after 1921.

March, 1922 — Hospital in Chicago —remained 2 months.

July, 1922— “ —remained until June, 1923 — approximately a year.

July, 1923 — Hines Hospital • — a month. Operated on.

Sept., 1923 — Chicago Hospital —remained until December, 1923.

April, 1924 — Hines Hospital —remained a year.

July, 1925 — Hines Hospital —remained until October, 1925.

April, 1926 — Hines Hospital —remained the rest of the year.

Oct., 1928 — Hines Hospital —remained until Jan., 1929.

Oct., 1932 — Hines Hospital —for month of October.

There is, in addition, support for the court’s findings in the opinion of at least one doctor.

On the other hand, the evidence shows that for two or three years after his discharge, appellee worked and earned a living from his labors. It is fairly inferable, however, that he did so at the sacrifice of his health. The record rather strongly supports the view that appellee struggled worthily, and in fact nobly, in a losing fight against a disease that grew worse each year, and, partly at least, because he was too game to give up. The volumes of the Federal Reporter and Federal Supplement, are replete with cases quite similar, although differing slightly in their facts. It would serve no useful purpose to add to the many reported cases to set forth all the evidence upon which our conclusion is based. Suffice it to say that each case must stand upon its own facts; that precedent can hardly be controlling where our study is confined to the ascertainment of the facts. Our disposition of the appeal turns upon the weight of the trial judge’s finding. Although appellee’s work record for three years after his discharge is against him and would well have supported a contrary finding, we are not prepared to say that it is here conclusive and there was no substantial evidence to support the District Court’s finding.

The refusal of the trial court to receive certain record evidence was not, in view of the other evidence, prejudicial.

The judgment is affirmed.

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