Circuit (the Third), held in a war risk insurance case, where the facts were somewhat similar, that the question of whether the plaintiff was totally and permanently disabled while his policy was in force, was a question of fact for the jury. In that case the policy was effective until November, 1920.
From August, 1920 to April, 1921, the insured worked 1,934 hours for a machine company. From July, 1921 to August, 1922, he worked in a garage. From August, 1922 until April, 1925, he did not work.In April, 1925, he was a machinist for the Oil Well Supply Company and held this job until August, 1930. From the latter date, he could not work and from August, 1929, to February, 1930, he did no work. In the opinion it is stated:
"This leaves open the question of whether or not his disability was total throughout the period from November, 1920, until the trial. Though a superficial consideration of the plaintiff's work record would make it seem inconsistent with the allegation of total disability at that time, this apparent inconsistency disappears when all of the circumstances surrounding the work record are considered. To restate some of these briefly, when he was working in the garage, he was kept on, not because he was able to do the work required of him, but out of sympathy for his condition. When he was working for the Oil Well Supply Company, his coemployees, taking pity on him because of his condition, did practically all of the strenuous work for him. They saw that he was 'working on his neve,' and his pain was written on his face. 'Running through this work testimony is an inescapable expression of human sympathy * * *; of a sense of human obligation of the strong towards the weak.' * * *
"All of these hardships are directly attributable to the injuries received in the service of his country. They indicate that the plaintiff worked 'when really unable and at the risk of endangering his health or life.' Lumbra v. United States, 290 U.S. 551, 54 S. Ct. 272, 276, 78 L. Ed. 492. He is therefore entitled to the benefits of his policy of war risk insurance, Lumbra v. United States, supra; United States v. Caldwell, 3 Cir., 69 F.2d 200, and the judgment is affirmed."
In United States v. Hill, 9 Cir., 99 F.2d 755, 756, the judgment of the District Court was affirmed which permitted a recovery by the plaintiff where it appeared that the insured (a nurse) has worked frequently for compensation. There was substantial evidence that she could not work without impairing her health at the time she worked. There was also in evidence, records of examinations by physicians employed by the Government, which indicated that the insured was not affected in the way she claimed to be. The court held that the sole question was "whether or not there is substantial evidence that she was totally and permanently disabled at the time her policy lapsed August 1, 1919."
In Sprow v. United States, 7 Cir., 99 F.2d 38, 40, which was also a war risk insurance case, in which there was a considerable work record and evidence that the insured was not able to work, the District Court directed a verdict for the defendant. On appeal, this judgment was reversed.The Court stated: "The test is not whether the plaintiff followed a substantially gainful occupation but whether he was able to do so. * * * And the question before the court was not whether the plaintiff should recover but whether he had produced substantial evidence to be submitted to the jury."
In the present case, in addition to the evidence of the plaintiff of his physical condition while he worked; the kind of work that he could do; the help he was required to receive when doing light work; the rest which he was required to take; that he worked because there was a necessity for him to do so in order to support those dependent upon him and partly because he thought that his doctors were probably alarmists, there was also the evidence of other witnesses corroborating the evidence of the plaintiff; and in addition thereto, there was the positive and direct evidence of Dr. Edgar that he examined and treated the plaintiff from September, 1926 to March, 1927; that in his opinion, the plaintiff then had a bad heart condition and a high blood pressure, which totally incapacitated him for work; that a cerebral hemorrhage might occur at any time, and that in his opinion, this total incapacity for work would continue during his lifetime. It also appears, that since some time in 1932, the plaintiff has not been able to do any work.
I am, therefore, of the opinion that the question whether the plaintiff was totally and permanently disabled prior to October 18, 1928, was a question of fact for the jury and not a question of law for the court, and that there was substantial evidence to submit to the jury on the question whether the plaintiff was totally and permanently disabled prior to October 18, 1928.
The request of the defendant for binding instructions, which was made at the trial, is therefore, refused. The motions of defendant for a new trial and for judgment non obstante veredicto are also refused.
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