MAJOR, Circuit Judge.
This is an appeal from a judgment, entered February 6, 1941, in favor of the plaintiff, allowing recovery of total permanent disability benefits under a contract of War Risk Insurance. This is the second appeal in this case, a former appeal having resulted in the reversal of a judgment in favor of plaintiff, with directions to grant a new trial. United States v. Cole, 7 Cir., 82 F.2d 655. In that appeal we held defendant’s motion for a directed verdict should have been allowed for lack of substantial evidence to establish total and permanent disability at the time insured ceased to pay premiums, and also that the court erred in the admission of medical testimony which invaded the province of the jury.
It was stipulated that plaintiff was inducted into the military service April 29, 1918, and was discharged therefrom on September 5, 1919; that on May 12, 1918, he applied for and obtained a $10,000 policy of Wark Risk Insurance on which premiums were paid to include the month of September, 1919; that the grace period expired at midnight October 31, 1919; and that claim for insurance benefits, filed by the plaintiff on May 21, 1931, was denied [471]*471before the present suit was instituted on December 28, 1931.
At the close of the evidence, a motion for directed verdict, made by the Government, was denied. The only contested issue here is the alleged error of the court in the denial of such motion. It is argued here, as it was in the court below, that the evidence on this trial is not materially different from that at the former trial, that our previous decision constitutes the law of the case, and that the record evidence is wholly inconsistent with plaintiff’s claim of total and permanent disability.
While the evidence in this case is similar to that adduced at the former trial, yet in some respects it is different and we are convinced furnishes stronger support for plaintiff’s case. Furthermore, in the instant case, no question is raised other than the one stated. We must assume, therefore, that the jury considered only competent evidence and that it was properly instructed as to the applicable law. While our former decision is persuasive, we do not believe it is controlling on the instant appeal.
The rule to be applied in determining the question before us was stated in Lumbra v. United States, 290 U.S. 551, 553, 54 S.Ct. 272, 273, 78 L.Ed. 492, as follows: “ * * * And, for its decision, we assume as established all the facts that the evidence supporting petitioner’s claims reasonably tends to prove and that there should be drawn in his favor all the inferences fairly deducible from such facts. * * * ” In reaching a solution of the question presented, we think we should give some heed to the fact that the cause has again been tried before the same judge who tried the former case, who twice has concluded that the evidence was sufficient to justify its submission to the jury, and that twice a jury has decided in favor of the plaintiff. We are of the view that defendant’s contention must be denied unless there are undisputed facts which so completely negative plaintiff’s contention as to make it incredible. In other words, the inferences which may be fairly deducible from the facts, as related by the plaintiff and - other witnesses, are sufficient in support of plaintiff’s claim unless such inferences have been destroyed by undisputed facts upon which the Government relies.
Briefly, plaintiff served in the Argonne Forest campaign from the 23rd of July, 1918, until the date of the Armistice. Most of that time he was under machine gun and shell fire. By explosion and shock he was rendered unconscious on numerous occasions. Sometimes he was unconscious for as long as twenty-four hours. At times he was unable to recognize his officers. His mind would come and go, and he developed a highly nervous condition due to shell shock. He received his fourth shock on the day before the Armistice was signed and became unconscious. After-wards, he found himself covered with dirt and mud in an old building, without knowing how he got there. He had almost constant headaches and his mind did not function properly. According to his testimony he worked regularly as a farm hand previous to his induction into military service, but has been unable at all times to follow any gainful occupation from the date of his discharge to the present time. His work record is practically nil. There is no doubt but that plaintiff has been under the care of physicians continuously from two or three days after his discharge from the service to the time of the trial. More than a score of doctors have treated him.
There is little, if any, question in our mind but that there was ample proof of plaintiff’s total and permanent disability subsequent to 1930. Both lay witnesses and medical witnesses make that fact reasonably certain. He was nervous, had pains in his head, fainting spells and a trembling of the hands. His condition was variously diagnosed as neurocirculatory asthenia, constitutional inadequacy, neurosis, over-active thyroid, exophthalmic goitre and Graves’ disease, a disease of the central nervous system. A number of doctors who treated him during this period testified that his condition was permanent, chronic and incurable. Also that he was unable to do any kind of physical labor or to follow any gainful occupation.
As pointed out in our former opinion, however, the total and permanent disability must have had its origin prior to the lapse of the insurance policy in suit. The critical period is that from discharge until about 1930. It is earnestly insisted by the Government that the undisputed facts destroy any probative effect which might be given to plaintiff’s claim. The doctor is dead whom plaintiff consulted within two or three days of his discharge and [472]*472who attended him regularly until about February 17, 1921. On the latter date plaintiff was admitted to the .Government Sanitarium at Marion, Indiana, an institution for the treatment of nervous and mental diseases, where he remained continuously until December 14, 1930. Numerous reports and records were introduced (not introduced at the former trial) covering plaintiff’s condition from January 22, 1921, until the date he was discharged from the Marion Sanitarium. In a report dated January 22, 1921, the diagnosis was Exophthalmic goitre. February 21, 1921, the same diagnosis was made. January 31, 1923, the diagnosis, in addition to Exophthalmic goitre, was Cerebral Spinal syphilis. The same diagnosis was made in 1925 and 1926.
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MAJOR, Circuit Judge.
This is an appeal from a judgment, entered February 6, 1941, in favor of the plaintiff, allowing recovery of total permanent disability benefits under a contract of War Risk Insurance. This is the second appeal in this case, a former appeal having resulted in the reversal of a judgment in favor of plaintiff, with directions to grant a new trial. United States v. Cole, 7 Cir., 82 F.2d 655. In that appeal we held defendant’s motion for a directed verdict should have been allowed for lack of substantial evidence to establish total and permanent disability at the time insured ceased to pay premiums, and also that the court erred in the admission of medical testimony which invaded the province of the jury.
It was stipulated that plaintiff was inducted into the military service April 29, 1918, and was discharged therefrom on September 5, 1919; that on May 12, 1918, he applied for and obtained a $10,000 policy of Wark Risk Insurance on which premiums were paid to include the month of September, 1919; that the grace period expired at midnight October 31, 1919; and that claim for insurance benefits, filed by the plaintiff on May 21, 1931, was denied [471]*471before the present suit was instituted on December 28, 1931.
At the close of the evidence, a motion for directed verdict, made by the Government, was denied. The only contested issue here is the alleged error of the court in the denial of such motion. It is argued here, as it was in the court below, that the evidence on this trial is not materially different from that at the former trial, that our previous decision constitutes the law of the case, and that the record evidence is wholly inconsistent with plaintiff’s claim of total and permanent disability.
While the evidence in this case is similar to that adduced at the former trial, yet in some respects it is different and we are convinced furnishes stronger support for plaintiff’s case. Furthermore, in the instant case, no question is raised other than the one stated. We must assume, therefore, that the jury considered only competent evidence and that it was properly instructed as to the applicable law. While our former decision is persuasive, we do not believe it is controlling on the instant appeal.
The rule to be applied in determining the question before us was stated in Lumbra v. United States, 290 U.S. 551, 553, 54 S.Ct. 272, 273, 78 L.Ed. 492, as follows: “ * * * And, for its decision, we assume as established all the facts that the evidence supporting petitioner’s claims reasonably tends to prove and that there should be drawn in his favor all the inferences fairly deducible from such facts. * * * ” In reaching a solution of the question presented, we think we should give some heed to the fact that the cause has again been tried before the same judge who tried the former case, who twice has concluded that the evidence was sufficient to justify its submission to the jury, and that twice a jury has decided in favor of the plaintiff. We are of the view that defendant’s contention must be denied unless there are undisputed facts which so completely negative plaintiff’s contention as to make it incredible. In other words, the inferences which may be fairly deducible from the facts, as related by the plaintiff and - other witnesses, are sufficient in support of plaintiff’s claim unless such inferences have been destroyed by undisputed facts upon which the Government relies.
Briefly, plaintiff served in the Argonne Forest campaign from the 23rd of July, 1918, until the date of the Armistice. Most of that time he was under machine gun and shell fire. By explosion and shock he was rendered unconscious on numerous occasions. Sometimes he was unconscious for as long as twenty-four hours. At times he was unable to recognize his officers. His mind would come and go, and he developed a highly nervous condition due to shell shock. He received his fourth shock on the day before the Armistice was signed and became unconscious. After-wards, he found himself covered with dirt and mud in an old building, without knowing how he got there. He had almost constant headaches and his mind did not function properly. According to his testimony he worked regularly as a farm hand previous to his induction into military service, but has been unable at all times to follow any gainful occupation from the date of his discharge to the present time. His work record is practically nil. There is no doubt but that plaintiff has been under the care of physicians continuously from two or three days after his discharge from the service to the time of the trial. More than a score of doctors have treated him.
There is little, if any, question in our mind but that there was ample proof of plaintiff’s total and permanent disability subsequent to 1930. Both lay witnesses and medical witnesses make that fact reasonably certain. He was nervous, had pains in his head, fainting spells and a trembling of the hands. His condition was variously diagnosed as neurocirculatory asthenia, constitutional inadequacy, neurosis, over-active thyroid, exophthalmic goitre and Graves’ disease, a disease of the central nervous system. A number of doctors who treated him during this period testified that his condition was permanent, chronic and incurable. Also that he was unable to do any kind of physical labor or to follow any gainful occupation.
As pointed out in our former opinion, however, the total and permanent disability must have had its origin prior to the lapse of the insurance policy in suit. The critical period is that from discharge until about 1930. It is earnestly insisted by the Government that the undisputed facts destroy any probative effect which might be given to plaintiff’s claim. The doctor is dead whom plaintiff consulted within two or three days of his discharge and [472]*472who attended him regularly until about February 17, 1921. On the latter date plaintiff was admitted to the .Government Sanitarium at Marion, Indiana, an institution for the treatment of nervous and mental diseases, where he remained continuously until December 14, 1930. Numerous reports and records were introduced (not introduced at the former trial) covering plaintiff’s condition from January 22, 1921, until the date he was discharged from the Marion Sanitarium. In a report dated January 22, 1921, the diagnosis was Exophthalmic goitre. February 21, 1921, the same diagnosis was made. January 31, 1923, the diagnosis, in addition to Exophthalmic goitre, was Cerebral Spinal syphilis. The same diagnosis was made in 1925 and 1926. On January 24, 1927, the report discloses “this patient has made very-little change either mentally or physically during the course of the past month.” The reports disclose that the patient was “cooperative, attends vocational school and prescribed exercises.” On March 5, 1929, the diagnosis was “Cerebral Spinal Syphilis in a state of remission, Hyperthyroidism — mild, Psoriasis — mild, Ptyergium, both eyes — mild,” and on December 14, 1930, “Cerebro-spinal Syphilis and Exophthalmic goitre.” One physician connected with the Sanitarium, and who had supervision of plaintiff from September, 1925 until December, 1929, stated: “ * * * It is my opinion that the plaintiff could have performed some light clerical type of work, but in view of his emotional instability and fixation on himself, as evidenced by these physical complaints and depressed episodes, he could not, in my opinion, have stood up under work requiring marked stress or strain emotionally.”
As pointed out, plaintiff was maintained and treated continuously in a Government Sanitarium for almost ten years. It is a significant circumstance, so we think, that during all these years, so far as is shown, plaintiff was neither asked nor taught to do any kind of work except the making of a few pockétbooks, although vocational training was provided for in the Sanitarium. This circumstance is more consistent with the plaintiff’s claim that he was unable to work than with the Government’s claim that he was. Also, it is not inconsistent with plaintiff’s contention that his condition, upon entry to the Sanitarium, had existed from the time of his service.
As stated; his work record is almost nil. In the winters of 1919 and 1920, he was interested with his brother in growing tobacco.'' At most he worked only a few days for which he received a compensation of $30. After his discharge from the Sanitarium, he engaged in the coal business for a period of thirty days and lost $25. In 1936, he purchased a lunch room and, after three weeks, transferred it to a woman whom he afterwards married, with an arrangement that she was to furnish him his meals. There is some evidence that he ordered meats and supplies for the restaurant. A Special Agent of the Bureau of Investigation was assigned to investigate the case in the fall of 1940, the result of which is more significant in what his report does not disclose than what it does. Plaintiff’s work record, as disclosed by his investigation, was to the effect that on one occasion the Special Agent saw plaintiff sitting at the restaurant counter reading a newspaper; on another occasion he saw him in the kitchen placing food on plates, and on the third occasion, which was just before Christmas, he was seen putting lights on a Christmas tree. If an investigator could discover no more of a work record than this, it is reasonable to conclude that there was none. Thus, instead of contradicting the plaintiff, it has a tendency to corroborate him.
It is also pointed out that subsequent to the Armistice and before plaintiff was discharged, he was assigned to do police duty. What his duties were in this respect is not disclosed and is of little importance. More material, however, is that plaintiff, at the time of his discharge, signed a statement that he was not suffering from injury or disease of any kind, and the certificate of the medical officer who examined him at that time stated he was physically and mentally sound. The effect of these statements and examination, however, is considerably weakened by the fact that plaintiff was, subsequent to his discharge, rated as disabled and awarded compensation from October 6, 1919 — in other words, from the date of his discharge.
The Government introduced in evidence an exhibit (not introduced at. the previous trial) which disclosed that plaintiff, between September 6, 1919 and. March 28, 1934, was paid a total of $17,433.61 for service-connected disability. This evidence was introduced, so it is said, for the purpose of showing that plaintiff had money and that there was no incentive for him [473]*473to work. In other words, to account for the lack of a work record. From February 18, 1921 (the date plaintiff entered the Sanitarium), plaintiff was allowed compensation at the rate of $80 per month until December 31, 1922, when it was increased to $90 per month. Such rating was continued until May 25, 1925, when it was increased to $100, which continued until June 30, 1933, when it was decreased to $75. This latter rating continued until April 30, 1936, when his compensation award was discontinued. The award indicates that he was rated, at least a part of the time, as totally disabled. While this compensation award, in itself, carries no great weight, yet we think it is another circumstance which affords some support to plaintiff’s claim. Certainly it is a recognition on the part of the Government that he was disabled from the time of discharge until the time when the compensation payments were discontinued.
It is also pointed out that plaintiff, since his discharge, was married, divorced and remarried. That might indicate he was sadly in need of a conservator, but we doubt if it has any bearing on the issue presented.
As already stated, we think plaintiff’s medical testimony shows that he was totally and permanently disabled subsequent to about the year 1930. The facts that he was continuously under the care of physicians subsequent to his discharge from service, that he was awarded disability compensation from the date of such discharge; that he was a charge of the Government for almost ten years, and that during the time from discharge until trial he worked at no gainful occupation, are all circumstances which tend to corroborate rather than contradict plaintiff’s claim of total and permanent disability.
While we concede the question is close, we are not convinced but that the court properly submitted the issue in controversy to the jury.
The judgment is therefore affirmed.