(dissenting).
I fully agree with the conclusions of Judge Booth if applied to eases as ordinarily presented, but, in my judgment, we have here no ordinary situation. I'think we are, and should be, ruled by the effect of our former decision [29 F.(2d) 904]. We held there that appellant, appellee here, could not recover upon his original policy, which had been superseded by a reinstatement contract. This decision was in accordance with the interpretation of the existing law by both courts and bureau. Congress, therefore, found it necessary to enact the amendment of 1930 in order to give the soldier an option to claim under his original contract, notwithstanding a subsequent reinstatement. This is the entire effect of this amendment. It has no effect whatever upon the reinstatement contract, and appellee in this suit claims only upon the latter. This is the position of the government, as witness the following language in its brief: “The fact is that the section can have no application whatever in this action and it has no relation to this proceeding whatever save as it bears upon the steps taken by plaintiff in attempting to enforce his claim.”
As bearing upon the good faith of the plaintiff in entering upon the contract of reinstatement, we said [29 F.(2d) 904, 906]: “The record convinces that plaintiff in error, without fraud, deceit, misrepresentation, or undue influence, elected to have his insuranee reinstated upon the terms specified in the act permitting reinstatement. To that end, the fact that he was not at that time totally and permanently disabled was assumed. Neither he nor any officer of the government at that time viewed his disability as permanent. At the time his application was made his recourse against the government under his certificate of war risk insurance, which had lapsed for nonpayment of premiums, was at least problematical.”
’ The foregoing statement is fully borne out by the record on the first appeal. Appel-lee was in fact advised by the Bureau to apply for reinstatement, and a co-operator of the Bureau, in charge of insuranee, made out his application for him, and, with knowledge of his physical condition, derived from Bureau files and otherwise, advised him to answer that he was not then totally and permanently disabled. The subsequent opinion that he was then totally and permanently disabled was stated by Dr. Reed at the trial in March, 1927, to be “in the light of my present knowledge.” He further testified: “At no time *859did I think he was totally disabled until the present time.” The Bureau had never theretofore rated him as permanently and totally disabled.
In the light of such showing, this court, December 14, 1928, while denying recovery under the original policy of insurance, held Shat “the present total permanent disability of plaintiff in error has been made clearly apparent. Upon further application to the Bureau, it would seem that recovery under the reinstated certificate should be awarded •without hesitation and without further legation.” The trial court upon the same substantial record has followed the course indicated, if not directed, by this court.
The contention of appellant may be summed up in the following language of the government’s brief: “The assured has failed to bring himself within the terms of his contract by his failure to prove that during -the life of the reinstatement he did become permanently and totally disabled.” If he was not so disabled at the time of reinstatement, and was so, as found, while the policy of reinstatement was in force, I think this requirement of proof is satisfied. The presumption that, prior to reinstatement, appellee was not totally and permanently disabled, must be upheld under the circumstances attending the. act of reinstatement. I cannot bring myself to subscribe to the injustice of depriving ap-pellee, unquestionably totally and permanently disabled through a service injury, of the relief to which he became entitled through government action, as established by the prior decision of this court. T think the judgment below should be affirmed.