THOMAS v. UNITED STATES, 92 F.2d 929

HUTCHESON, Circuit Judge. The suit was for permanent disability benefits under a yearly renewal term war risk insurance policy. The claim was that on March 7, 1927, while his policy was in full force and effect by payment of premiums, plaintiff (as the result of an injury on June 12, 1925, to his right leg, and subsequent treatment and operation therefor) was and became permanently and totally disabled within the meaning of the policy.

The defense was that, though plaintiff did on and before March 11, 1927, suffer an injury, as the result of which he was on that date permanently disabled, said disability was not total within the meaning of the policy, and the policy did not therefore become a matured claim. Tried to a jury, plaintiff offered both lay and medical testimony as to his condition.

When plaintiff had rested and before entering upon his proof, defendant moved for an instructed verdict, and over plaintiff’s protest that “without the introduction of evidence on the part of defendant the court had no power to grant other than a non-suit or a directed verdict for plaintiff,” the trial court directed a verdict for defendant. Later, after the dismissal of the jury, the court of its own motion vacated the verdict and granted a nonsuit.

From this grant of a nonsuit plaintiff appeals, asserting (1) that the court was without the power to grant a nonsuit after the dispersal of the jury; that he could grant only a new trial; (2) that its granting was an error, in any event, because plaintiff’s evidence was sufficient to make out a case for the jury of total and permanent disability. Defendant here insists, as it did below, that plaintiff’s disability is confined to injury to and impairment of the use of his right leg, and that such impairment cannot be said to constitute total disability.

Plaintiff, not at all disputing defendant’s contention, that if plaintiff’s evidence proved only this, it would not make a case for the jury, insists that defendant, in so contending, misreads and misconstrues the evidence. He urges upon us that the real effect of his evidence is to show not merely a severe and disabling injury,to plaintiff’s leg, but injuries to the sciatic nerve, and to plaintiff’s nervous system generally, so severe and so disabling as to make it impossible for him, at his age, to enter upon and continue in a substantially gainful occupation.

Pressing upon us the settled rule of decision that, unless the evidence permits of only one reasonable conclusion, the question of total and permanent disability in war risk cases is one of fact for the jury, plaintiff, in support of his argument, that the evidence taken most favorably for plaintiff, makes out a jury case, puts forward excerpts from the record which tend strongly to support his view. It will serve no purpose to set-them out.

It is sufficient to say that we have carefully and painstakingly read and reread the record, keeping in mind both defendant’s contention that no more than a leg injury, and plaintiff’s, that much more than that, is shown. We think it plain that plaintiff’s evidence would support a verdict that plaintiff’s nervous tension was such that he could not get, and if he could get, he could not hold, any substantially gainful position, and that in first directing an instructed verdict, and then granting a non-suit afterwards, the District Judge erred.

The judgment is reversed, and the cause is remanded for further and not inconsistent proceedings.