Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Frederick L. Wham, Judge.
Before EVANS, TREANOR, and KERNER, Circuit Judges.
This action was brought by the plaintiff to recover on a policy of war risk insurance issued to Adams, who was in the United States Army from May 17, 1917, to January 19, 1920, when he was honorably discharged. The case was tried to a jury. At the close of all the evidence the defendant moved for a directed verdict on the ground that there was no substantial evidence to support a finding for the plaintiff. The District Court reserved its ruling and submitted the case to the jury. The jury returned a verdict for the plaintiff, finding that he became totally and permanently disabled on January 10, 1920. Thereafter defendant moved for judgment notwithstanding the verdict, which the trial court granted, set aside the verdict, dismissed the complaint and rendered judgment for costs against the plaintiff. To reverse the judgment plaintiff appeals.
The question presented is whether the evidence was such as to justify the court's ruling as a matter of law that there was lack of substantial evidence that plaintiff was totally and permanently disabled while his insurance was in force.
In the examination of this question we are not to weigh the evidence and what our verdict would have been as jurymen is immaterial. It is likewise of no importance that we may be of the opinion that the evidence preponderates in favor of the defendant, for the reason that the responsibility of weighing the facts lies with the july. United States v. Dudley, 9 Cir., 64 F.2d 743.
In our case we must assume as established all the facts that the evidence supporting plaintiff's claim reasonably tends to prove, and there should be drawn in his favor all the inferences fairly deducible from such facts. Lumbra v. United States, 290 U.S. 551, 54 S. Ct. 272, 78 L. Ed. 492, and Gunning v. Cooley, 281 U.S. 90, 94, 50 S. Ct. 231, 74 L. Ed. 720.
In an action of this character the plaintiff must shown (1) that before the policy lapsed he was totally disabled, i.e., that his disability was of such a character that he was incapable of pursuing with reasonable regularity any substantially gainful occupation; and (2) that this disability was of a permanent character, i.e., that it was based upon conditions which rendered it reasonably certain at the time that it would continue throughout the life of the insured. United States v. Diehl, 4 Cir., 62 F.2d 343 and Eggen v. United States, 8 Cir., 58 F.2d 616.
The evidence introduced and relied upon by plaintiff tended to prove that at the date of his enlistment has was 24 years of age, in good health, and had been employed as a railroad brakeman. Upon enlistment he was sent to Brownsville, Texas and there engaged in border patrol work. While at Brownsville, undergoing gas training in a gas chamber in June, 1918, he was gassed, compelled to leave the chamber and thereafter suffered from pain in his lungs. He was confined in an army hospital, then ordered to the United States Hospital at Fort Bayard, New Mexico, where he remained for 18 months until December 12, 1919, on which date a Board of Army Medical Officers recommended his discharge from serivce on account of "active pulmonary tuberculosis" involving both upper lobes. Upon his discharge on January 19, 1920, he retired to his father's farm at Marion, Illinois, and there was treated by physicians who prescribed light exercise with afternoon rests. On February 24, 1920 a physical examination disclosed "charonic bronchitis slight," and on September 16 his disability was diagnosed as "pulmonary tuberculosis, quiescent."
In May 1921 while at the Hines Hospital, he was examined and his illness diagnosed as "pulmonary teberculosis, moderately advanced, active." Between that date and the trial of this case on November 29, 1939, numerous other physical examinations were made of plaintiff and diagnosed as follows:
May 10, 1921. Pulmonary tuberculosis, moderately advanced, Rii Li,
active, training not feasible.
October 18, 1921. Pulmonary tuberculosis, chronic, quiescent.
December 28, 1923. Pulmonary tuberculosis, ...