Burak

(dissenting).

In the first suit it was adjudged that appellant became totally and permanently disabled in May, 1918, at a time when his policy was in force, and that he continued so disabled to November 2, 1927, the date of the verdict. The main opinion holds that in the present suit it was proper to admit evidence of the insured’s ability to work during this time, notwithstanding he had been adjudged unable to work. As I understand the views expressed by Judge HANEY, he is of the belief that while the evidence was improper it was not prejudicial. From both views I dissent.

The main opinion summarizes briefly the character and extent of the evidence objected to. It covered a period of nearly three years ending prior to November, 1927. Aside from medical testimony, it formed in reality the backbone of the Government’s defense, both on the cross examination of the insured and in the Government’s case in chief. All of it went in over appellant’s objection that it was not material, that it related to a time prior to the verdict in the former suit and that its purpose and effect were to impeach the judgment in that action.

In no fair sense can it be said that appellant himself…

In 1917 and while appellant was in the United States military service, he was insured under a war risk insurance policy. By a United States District Court judgment entered November 2nd, 1927, he was adjudged “totally and permanently disabled” from and after May, 1918, and pursuant thereto a lump sum of money was paid him and thereafter he received monthly installments of money under the terms of the policy until February, 1936. On such date the government ceased such payments because it held that appellant was no longer “totally and permanently disabled”. Thereafter appellant brought suit in the United States District Court under and pursuant to § 19, World War Veterans’ Act, as amended, 38 U.S.C.A. § 445 , alleging in effect that he had not recovered from his disabilities and that from the date of the above referred to judgment he had continuously remained “totally and permanently disabled”. The case was tried to a jury and resulted in a verdict for the government. Thereafter appellant made a motion for a new trial, which the court denied, and appellant then prosecuted this appeal from the judgment as entered pursuant to the verdict.

(I shall refer to the last mentioned action,…

(concurring).

I concur in the result obtained by Judge STEPHENS. I think there is only one debatable point raised, and that is whether or not the admission of evidence showing appellant’s work record prior to the judgment in the first trial was reversible error. I can see no materiality of such evidence in the instant case. It seems to me that evidence that a person did work at one time is entirely irrelevant to an issue as to whether he was able to work ten years later. Furthermore, since it was adjudicated once that such work record was insufficient to negative permanent and total disability arising shortly after the work was performed, it seems wholly unreasonable to say that such work record tended to negative permanent and total disability arising some ten years later.

*142 When the court below admitted the evidence, it said that such evidence was “admitted for the purpose of throwing light on the plaintiff’s present ability to follow a gainful occupation * * * and will be disregarded by the jury for any and all other purposes.” The court again instructed the jury that such evidence was “received only as it may have evidentiary effect upon the issue in this case.” The jury…