Deal

This is an action commenced December 4, 1931, upon a war risk insurance policy which expired May 31, 1919. Plaintiff alleged that he became totally and permanently disabled while the policy was still in force by reason of arthritis of the spine, knees, and shoulders, and from a back injury caused by high explosives. The jury found in favor of the plaintiff, and the government appeals, assigning error in the failure of the court to grant its motion for a directed verdict. That at the time of the trial October 22, 1934, the plaintiff was totally and permanently disabled there is little doubt. That he was seriously injured in battle July 26, 1918, by the explosion of an enemy shell within a few feet of him, is established. Later he suffered a head injury in battle. It is claimed that his present disability is due to these injuries. Assuming this to be true, the question for our consideration is whether or not there is substantial evidence that on May 31, 1919, he was totally disabled and that it was reasonably certain that such condition would be permanent. The plaintiff testified, in part, as follows:

*930 “After getting out of the hospital, I went back to St. Avignon — then went…

(dissenting).

In this case there was evidence that the gainful work done by the soldier tended to aggravate a permanent disease, incurable from the beginning. The ques *934 tion of law involved is a very simple one. It is, “whether, where the soldier has an incurable progressive permanent disability arising from a war cause and during the life of his policy, the performance of considerable gainful work during the earlier stages of the disease, establishes his disability as not total, though all such work aggravates the disease and tends to endanger the health and shorten the life of the insured?”

In my opinion the case falls within the language of Justice Butler in Lumbra Case and the decisions of this Circuit and of the Second, Fourth, and Tenth Circuits upon which Justice Butler relies in his summary of the law: “The mere fact that one has done some work after the lapse of his policy is not of itself sufficient to defeat his claim of total permanent disability. He may have worked when really unable and at the risk of endangering his health or life.” (Italics inserted.) Lumbra v. U. S., 290 U.S. 551, 560 , 54 S.Ct. 272, 276 , 78 L.Ed. 492 . Justice Butler cites U. S. v. Lawson…