Appeal from the District Court of the United States for the Northern District of Indiana, South Bend Division; Thomas W. Slick, Judge.
Before SPARKS and ALSCHULER, Circuit Judges, and BALTZELL, District Judge.
This was an action upon a war risk insurance policy issued to appellee while he was in the United States military service from September 19, 1917, until his discharge on March 21, 1919. The policy insured appellee against death and permanent disability. The premiums had been paid until December, 1925, at which time the insurance lapsed for non-payment of premiums. It was reinstated in the following month upon certain conditions hereinafter referred to, which included appellee's representation as to his condition at that time. In July, 1927, the insurance was converted by appellee from term form into a government life contract, which, upon rendition of the judgment in this cause, was by order of the court surrendered and cancelled.
Appellee had been paid installments on his term insurance contract from December, 1919, until February, 1922. By virtue of those payments the contract of insurance had been reduced to $9,210. Section 301, World War Veterans' Act 1924, as amended by Act July 3, 1930, § 22, 38 U.S.C.A. § 512; and section 302 of the same act of 1924, 38 U.S.C.A. § 513.
The record discloses that when appellee entered the service he had received a partial high school education and had been engaged in farming from which he had received annually on the average of $400, and his health previously had been fair. During his service in France he was gassed, requiring hospitalization both in France and in the United States. He was given a regular, and not a disability, discharge with the notation of "10% disabled." After he left the army, he lived with his father for several years and did occasional work with a wheat threshing crew, paper hanging, house painting, and automobile repairing, and in the fall of 1921 he engaged in the garage business with a partner to whom he sold out a few months later. He was married in 1922 and has five children. In the spring of that year he moved on a farm of ninety-five acres which he rented from his father-in-law under an agreement for an even division of the grain raised, the appellee to retain the other produce and the profits of the livestock. The agreement required him to furnish a hired man, who, it was not denied, did most of the work. That arrangement continued until the father-in-law's death in 1930, at which time appellee's wife inherited a half interest in the farm and purchased the other half. Since that time, appellee has not been able to make wages out of the farm, and rented it out by the field. Since 1923 he spent about one hundred days doing auto repair work. He received between $35 and $53 a month compensation during the period he managed the farm, and at one period of that time he received as much as $100 a month. His savings were not used to purchase the farm, but were used to pay for his physician's services in addition to the services of the government physicians.
The medical testimony of appellee disclosed that in 1919 an X-ray examination showed a tubercular condition of appellee's lung. In 1924 he had a tubercular affection in the upper left apex of one lung, and a curvature of the spine attributed to a tubercular condition. At that time, the diagnosis disclosed pulmonary tuberculosis and chronic tyroiditis, and the prognosis was recorded as fair. The curvature of the spine grew progressively worse until the time of trial, and one doctor testified that it would be progressively worse in the future.
Reports of medical examinations during 1924, submitted by appellee, disclose the following diagnoses:
April 9, 1924: Pulmonary tuberculosis, chronic incipient, inactive; chronic emphysema.
November 14, 1924: Chronic pulmonary tuberculosis, minimal, inactive; pulmonary emphysema; marked kyphosis (curvature) dorsal spine.
November 24, 1924: Chronic pulmonary tuberculosis; chronic tyroiditis.
July 31, 1925: Hyperthyroidism.
March 23, 1926: Hyperthyroidism, moderately severe; kyphosis, thoracic spine, secondary to chest condition.
April 18, 1927: X-ray: kyphosis of dorsal vertebrae with some arthritic and hyperthrophic changes involving 8th, 9th and 10th. Changes ...