Marshall

This appeal was taken from a decree of the court below setting aside a supplementary compensation award made by appellant Marshall under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq.

*545 Appellee, while working as a longshoreman, sustained an injury consisting of an abrasion on the right leg above the ankle, on June 3, 1936. He was confined to the hospital on June 13, 1936, and was discharged on Jun'e 24, 1936. Appellant insurer paid appellee compensation until November 4, 1936. Appellee filed a claim for further compensation, and after a hearing, the Deputy Commissioner, • on March 4, 1937, found that while appellee was confined to the hospital he caught a cold as the result of being exposed to a draft from an open window, and that the exposure of the claimant to the. draft, which in turn caused the cold, resulted in the total disability of appellee. Based on such findings, the Deputy Commissioner made a compensation award to “be paid to [appellee] until the termination of his disability or the further order of the Deputy Commissioner”.

The insurer paid appellee compensation until September 13, 1940, when another hearing was held by the…

(dissenting).

Claimant is a man somewhat advanced in years, being 67 in 1940. At the supplementary hearing the doctors testified that he was suffering from a diseased heart condition and general breakdown. Both physicians were familiar with the history of the case and with the claimant’s hospital record following the accident, and both testified positively that the effects of the injury — which was minor in character— and the ensuing cold had rather quickly spent themselves; and that the claimant’s existing disability was in no way caused or contributed to by the.injury or its aftermath of cold.

It is abundantly clear, I think, that the deputy commissioner believed the testimoony of the physicians and that he adopted their view of the matter. His supplementary order terminating the compensation was as follows: “The injury sustained by *547 the claimant on June 3, 1936, was an abrasion of the right leg above the ankle; while in the hospital for the care of the said injury the claimant acquired a cold, and the award of compensation in the compensation order of March 4, 1937, was based upon the finding that the injury was the proximate cause of claimant’s continuing disability.…