Petitioner was a private in the army of the United States from July 14, 1917, to April 29, 1919. In September, 1917, he obtained war risk insurance against death or total permanent disability. May 31, 1919, the policy lapsed for nonpayment of premiums. November 30, 1931, he brought this suit in the federal District Court for Vermont, alleging that before May 31, 1919, the policy was matured by his total permanent disability. Issue having been joined, there was trial by jury. At the close of all the evidence respondent requested the court to direct a verdict in its favor. The court denied the motion, and, the jury having found for petitioner, entered judgment in his favor. The Circuit Court of Appeals reversed. 63 F.(2d) 796.
Petitioner's claim is that while the policy was in force he became subject to recurring spells of headache, dizziness, epileptic seizures, and other illness constituting total permanent disability. The Circuit Court of Appeals held the evidence not sufficient to show total permanent disability of petitioner while the insurance was in force. The question presented is whether there was any evidence upon which a verdict for petitioner might properly be found. 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. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720.
Before joining the army petitioner was a laborer and worked cutting logs, building roads, and as a farm and factory hand. When enrolled he was a healthy and strong man of 25 years. He served overseas in a machine gun company. One of his ankles was injured June 16, 1918, and two days later he was taken for treatment to a base hospital where he remained about a month. It was there recorded that while going into a dugout, he had slipped and severely sprained his ankle, that there was no fracture, and that his general condition, heart, lungs, and nervous system were satisfactory. When discharged from the hospital he joined his company and remained with it until mustered out at Camp Devens, Mass., April 29, 1919. The official record shows that upon a careful examination at that time by an army surgeon he was found mentally and physically sound; that he declared he had no reason to believe he was impaired in health or was suffering from the effects of any wound, injury, or disease, and that his company commander had no reason to believe he then had any wound, injury, or disease.
In 1920, petitioner several times consulted Dr. Frank B. Hunt who certified, December 7, 1920, he found petitioner suffering from rheumatism, chronic bronchitis, and nervousness. At the trial Dr. Hunt testified that petitioner was not when examined totally incapacitated and did not complain of having had epileptic seizures of any kind. It seems that the certificate was intended for use in support of an application to the United States for compensation. And, apparently in connection with such an application, petitioner was examined by Dr. Byron Herman of the Public Health Service. Under date of December 10, 1920, Dr. Herman reported that while in the army petitioner was never sick, although in the hospital once for a sprained ankle, that he became ill after getting home, and that he then complained of rheumatism, throat trouble, and husky voice. The doctor's diagnosis was chronic rheumatism and chronic laryngitis, his prognosis was: 'Good.' He reported that petitioner was able to resume his former occupation; that the degree of vocational handicap was negligible; and that vocational training was feasible. January 17, 1921, petitioner verified an application for compensation stating that he was suffering from bronchial troubles, rheumatism, and nervousness which commenced about a year earlier and were caused by gas and exposure in France. And, in March, 1922, claiming to be partially disabled by reason of ailments of the lungs and throat, petitioner made application for compensation and training.