(dissenting).
In this case there was evidence that the gainful work done by the soldier tended to aggravate a permanent disease, incurable from the beginning. The ques*934tion of law involved is a very simple one. It is, “whether, where the soldier has an incurable progressive permanent disability arising from a war cause and during the life of his policy, the performance of considerable gainful work during the earlier stages of the disease, establishes his disability as not total, though all such work aggravates the disease and tends to endanger the health and shorten the life of the insured?”
In my opinion the case falls within the language of Justice Butler in Lumbra Case and the decisions of this Circuit and of the Second, Fourth, and Tenth Circuits upon which Justice Butler relies in his summary of the law: “The mere fact that one has done some work after the lapse of his policy is not of itself sufficient to defeat his claim of total permanent disability. He may have worked when really unable and at the risk of endangering his health or life.” (Italics inserted.) Lumbra v. U. S., 290 U.S. 551, 560, 54 S.Ct. 272, 276, 78 L.Ed. 492. Justice Butler cites U. S. v. Lawson (C.C.A.9) 50 F.(2d) 646, 651; Nicolay v. U. S. (C.C.A.10). 51 F.(2d) 170, 173; U. S. v. Phillips (C.C.A.8) 44 F.(2d) 689, 691; U. S. v. Godfrey (C.C.A.2) 47 F.(2d) 126. In each one of these cases there was a work record comparable to that of the soldier here. The language of the specific pages of two of these opinions to which Justice Butler refers is as follows:
“It might be argued that the fact that plaintiff managed to hold several positions for the greater part of the time during the years in question, and actually engaged in work, proves that he was able to work and not totally and permanently disabled. But this does not necessarily follow. It is a matter of common knowledge that many men veork in the stress of circumstances when they should not work at all. When they do that they should not be penalized, rather should they be encouraged.” (Italics inserted.) U. S. v. Lawson (C.C.A.9) 50 F.(2d) 646, 651.
“Again, the word ‘impossible’ must be given a rational meaning; it cannot fairly be said that it is ‘possible’ for an insured to work because, under the stimulus of a strong will power, it is physically possible for him to stick to a task, if the work is done at the risk of substantially aggravating his condition.” (Italics inserted.) Nicolay v. U. S. (C.C.A.) 51 F.(2d) 170, 173.
The holding of these cases is in no wise affected by decisions holding that if the disease is curable there is no permanent disability, even if by working the cure was prevented, such as the recent case in this Circuit of Deadrich v. U. S., 74 F.(2d) 619, 623. There the disease was curable and our court relies on the following: “ '* * * An insured who is suffering from a curable disease cannot through his own neglect and inaction permit the disease to progress to the incurable stage, and then assert a liability on his insurance contract on the ground that the disability was permanent at its inception, without some proof thereof.’ U. S. v. Ivey, 64 F.(2d) 653, 654 (C.C.A.10).”
The case of U. S. v. Spaulding, 293 U.S. 498, 504, 506, 55 S.Ct. 273, 79 L.Ed. 617, asserts as still controlling, the law as above quoted from Lumbra v. U. S. In the Spaulding Case the expert testimony is that Spaulding’s disease was not shown to be incurable at the time he contracted it but, on the contrary, is “that he might have recovered.” (Dr. Bryan, 504). Obviously if he had recovered he could thereafter work as an aviator or at other employment without danger to his health. He therefore did not have permanent disability within the phrase “total and permanent disability.” In Deal’s Case, as stated more fully infra, both physicians testified concerning the gradual calcification of his back: “There is no cure for that condition” (r. 62); “No cases of this kind are curable” (r. 63); “There is no cure for. this condition” (r. 71).
The. soldier’s case is a very plain one of a disease incurable from the beginning, the progress of which he hastened to paralysis by the work he performed. It is that while in war service in France he received an injury to his spine and head, caused by an exploding shell. Later, also in battle, his skull was again injured. As a result there was continuous and permanent inflammation of the vertebral joints, from which calcareous matter was certain to be continuously deposited in the joints until the spine would become, as it practically did, a solid and immovable single calcified structure.
The soldier, not being advised by the government physicians or otherwise of the permanent and dangerous character of his injury,- worked for considerable periods before the solidification of his backbone prevented further effort. His work *935always caused increased pain at the point of injury, showing that, at the same time, it caused an increase in the permanent inflammation, thus inferably increasing the “danger to his health,” as that term is used1 by the Supreme Court and by this court.
His testimony that ever since his injury, whenever plaintiff endeavored to work he always suffered severe pains in the spinal region is as follows:
“During all that time I was miserable. My feet, legs and back wouldn’t hold up and I had a headache, but I had to keep on working. I was always taking aspirin. I took it all the time. I had to have something to go on with my work and many times I drank whisky — just enough to kill the pain. I also heated a' brick to stand on to keep my feet and legs from hurling so. It seemed to ease the pain the same as when I put a hot water bag or electric pad on my back or feet. I also used hot liniment and lots of things when I was working. After working I cotdd go to sleep alright sometimes, but if I twisted myself or turned, I would wake up because my back was so sore. This would start the pain. * * *
“I had fearful pains when I had to stoop over. I used these heat applications pretty often. I took aspirin pretty regular during the year. * * *
“When I would go to bend my back or lift anything I would get down and could-n’t get up. I couldn’t bend my back. It wasn’t over a month after my discharge. I couldn’t bend my back. I would be walking along without pain and then I would catch my back and would have to stop. These attacks would last an hour or so. My back and other parts of my body were sore. It was miserable. It started out in my lower back and hips, but it went all over my back later. * * *
“Before leaving France, I had rheumatism. It was in the back and in the hips, and in my arms. When I would have a bad spell, I would use crutches and could hardly go, but that didn’t last so long.”
A jury may properly be warned that pain may be simulated. However, in this case, on September 23, 1919, shortly after his policy expired, plaintiff was examined by two government physicians. The pain then suffered by the soldier in his back and hips, as a result of his attempts to work, is found in the following portion of their report: “Present complaint: Back is weak and painful — when he goes to bed after a days work, back continues to pain and is stiff and sore in morning. Work, such as stooping over is difficult because when coming to erect position considerable discomfort is experienced. Says that occasionally is unable to work.”
It is a matter of common knowledge that pain ordinarily accompanies and hence evidences inflammation; and that arthritic calcareous deposits may increase with a use of the infected region causing inflammation. If it were not a matter of common' knowledge, the following from the testimony of Dr. Alan Welch Smith warrants such an inference by the jury:
“In Exhibit B, the government report shows an old proliferitis. That means a throwing out. An extension of an old injury which he has.
“This arthritis which he had would be likely to follow some injury. The indistinct and hazy appearance of the X-ray would indicate an inflammation in that immediate locality. Chronic arthritis is an incurable arthritis, and arthritis is inflammation of the joints. It means inflammation and articulation where two joints join together, and where they gel inflamed in that joint, it is called arthritis. In arthritis the pain is more progressive than in rheumatism.
“In my opinion this injury from which this man is suffering is the direct result of some previous injury or accident. My conclusion is based on the fact that his vertebra below the small of his back shows practically no indication of any arthritis or injury to the vertebrae. Above that, and from that up to the base of his head, including his neck, shows a condition that could lie, in my opinion, only brought about as the result of an injury, because if it had been a general condition, rather than a local condition, the whole body would have been affected and there would have been fine calcareous deposits in other parts of the body. The structure of this man appears to be like a house that has been struck by an earthquake. The house has not fallen but he, the man, is virtually- — but it, the house, is so- shattered. In this case he, the man, is alive, and in it but the average house would be torn down. The experience which he had in the explosion of this shell, having been hurled through the air and having his clothes torn to shreds, probably would set up the de*936structive reaction which we find in this case — the rigidity of the spine. The pain he suffered could have come from the blow such as the one described which he suffered to his back. His condition is of some long duration. *' * *
“Now you see the narrow spaces between the two vertebrae. That is supposed to be cartilage. It is supposed to be cartilage zohich has virtually absorbed .and that will cause a solidification or rigidity of this spine. There is nothing between that (indicating). It is solid. At this point there is a spear formation, — the formation of a spear on the end of that vertebrae (indicating). Likewise, here and as you see, some of these are narrow,— clearly obliterated, — solid now, probably. Here is this man’s neck. It shows that this condition here from which he is suffering and has suffered is ascending. This is the cervical vertebrae. This is the base of this man’s skull (indicating), here is his head and jaw. These vertebras are as you will notice here, — they indicate, with this haze, which I spoke about a moment ago, — indicate that this is ascending and throwing out a calcareous deposit, causing a stiffness of his neck, which seems to be progressive. * * *
“You will note that this intervertebral disc, these intervertebral discs are these shadows which you see, between the vertebra (indicating). I think at no place ought they to be as thick as that (indicating). Here, may be more (indicating). That is the result of inflammation of the cartilage in between there which has been absorbed. I will call your attention to another thing; you will notice how this extends out beyond the body of the vertebrae — that halo is because the tissues meet in apposition to this column — they have been insiltrated. That is, if we had a fluid here and the river overflowed, the surrounding country would be inundated and the water would back up. Likewise, inflammation of this man’s spine which shows very distinctly; the outlying tissues have become hazy as it appears on these pictures — showing inflammation. There has been a certain amount of calcareous or bone formed — bone forming tissues that have been thrown out and that gives it that curious hazy appearance. I draw my own conclusion from this and that is that part of the spine, from here down to here is practically, — it has lost its flexibility and it is rigid or solid, approximately solid, —the back has become ankylosed.”
From the evidence the jury was entitled to infer: (1) That the soldier’s back and head were injured in battle; (2) that he at once suffered the pain of what he called “rheumatism” in the injured part of the back; (3) that the pain continued in the injury, whenever he moved the back in work or bending over, from the inception of the injury until the complete calcification of the backbone and ensuing paralysis; (4) that this evidenced the malady described by his physician expert as “chronic arthritis”; (5) that this malady was, as testified, “incurable”; (6) that the malady is an inflammation in the joints of the vertebrae causing the secretion of the calcareous matter which solidified the spine; (7) that the greater the inflammation the greater the secretion and the quicker total calcification and paralysis; (8) that the pain always caused by the gainful bodily work he performed, showed it increased the inflammation, hence the greater formation of calcareous matter, and hastened the paralysis; and hence (9) that his gainful employment was, in the words of the Lumbra Case, “at the risk of endangering his health or life,” and hence made his disability none the less total.
We have no right to take from the jury the inference that the soldier’s physical labor, causing or increasing pain, meant increased inflammation of the joints of the spine and hence an increase of the “bone forming tissues that have been thrown out.” with the attendant calcification.
The only gainful attempt made by the soldier, other than' that at rude labor, was in the trucking business, which went bankrupt. On the question whether the soldier has sustained his burden that, with his impaired physical condition he was a person incapable of self-support in any other occupation, it is obvious that one oí the principal items of evidence was the mental capacity and adaptibility of the plaintiff himself. Keith v. New Haven &, etc., Co., 140 Mass. 175, 3 N.E. 28. These qualities or the lack of them were under the observation of the judge and jury while the plaintiff was undergoing protracted direct and cross-examination. They were evidence to the judge when he denied the motion for a directed verdict.
We are here considering the sufficiency of the evidence to reverse a verdict on the ground of the failure to instruct for the defendant. We are hence required to as*937sume that the trial judge concluded that this “fourth reader” man, with this injury, is obviously so lacking in adjustable intelligence and initiative that the jury properly concluded that, just as in the attempted trucking business which ended in bankruptcy, and which he testified “he was not able to attend to,” any business he went into would wind up in bankruptcy.
Apart from mental qualities, a sedentary business requires continued effort in the spine in control of a sitting posture. Such effort may increase the pain to a point that even sedentary occupation cannot be pursued by one with a diseased spine, even if mentally qualified. It was a question for the jury whether this man with his limited education, doing nothing but rude labor before injury, had the mentality which, in connection with the pain he suffered, could acquire any gainful occupation at all, much less one that would not endanger his health.
Miller v. U. S., 294 U.S. 435, 440, 55 S.Ct. 440, 442, 79 L.Ed. 977, holds nothing contrary to this conclusion. There an able-bodied man lost one arm and had one defective eye, and the question was whether he had shown himself incapable of acquiring any gainful occupation. Instead of maintaining his burden of proof, the opinion shows that he did not make “any effort to engage in other work which ordinarily a one-armed man with one defective eye could do.”
It does not appear that the trial judge with his knowledge of the facts, in such pertinent part of the real evidence of his mentality as shown on the stand but not appearing here, erred in permitting the case to go to the jury, and the judgment should be affirmed.