(dissenting).
In the first suit it was adjudged that appellant became totally and permanently disabled in May, 1918, at a time when his policy was in force, and that he continued so disabled to November 2, 1927, the date of the verdict. The main opinion holds that in the present suit it was proper to admit evidence of the insured’s ability to work during this time, notwithstanding he had been adjudged unable to work. As I understand the views expressed by Judge HANEY, he is of the belief that while the evidence was improper it was not prejudicial. From both views I dissent.
The main opinion summarizes briefly the character and extent of the evidence objected to. It covered a period of nearly three years ending prior to November, 1927. Aside from medical testimony, it formed in reality the backbone of the Government’s defense, both on the cross examination of the insured and in the Government’s case in chief. All of it went in over appellant’s objection that it was not material, that it related to a time prior to the verdict in the former suit and that its purpose and effect were to impeach the judgment in that action.
In no fair sense can it be said that appellant himself opened this field or that the error in admitting, the objectionable evidence was invited error. The evidence of appellant’s work record was not responsive to any testimony introduced on his behalf relating tc the period of his adjudged disability, nor in rebuttal of any such testimony. The main opinion, after what was no doubt a painstaking search of the record, has collated a .stray reference or two which may be said to relate to this period; but I find nothing to justify the observation there made that “the appellant himself showed the way and he should not be allowed to complain after the case wa-s conducted along the pathway of his own leadership.” True, the veteran claims he is now incapacitated and he attempted to describe his condition, but I think his testimony in this respect properly led the way to nothing except an inquiry into the current state of his health.
Upon opening his case the appellant related briefly an incident occurring in the trenches. The testimony was innocuous so far as concerns any harm done the defense, and at most was purely preliminary or explanatory in character. It is not even to be inferred that the insured was injured on that occasion. Nor did the Government contend that he had not served in the trenches or that the incident related had not taken place. The veteran’s service record was not in dispute and it had been judicially determined that he became totally disabled during the period of his service.
The sole issue in the present suit was whether appellant was suffering from total and permanent disability subsequent to January, 1936. Ordinarily, evidence of work done at any time subsequent to the date of the causative injury would be material to the inquiry. Evidence that in the years 1925 to 1927 the insured .followed gainful occupations would tend strongly to show that he was not totally disabled during those years; and, unless there was proof of a change for the worse, an inference would arise that he was not totally disabled at a later time. A condition of ability to labor, once shown to exist, is, like other conditions, presumed to continue unless the contrary appears. The rule of law to this effect merely recognizes the accumulated wisdom of experience. Jurors, like other humans, reason in this fashion.
Here, however, we are confronted with the former judgment. While this was not res judicata as to the issue in the present suit, it nevertheless conclusively determined the fact that during the whole of the earlier period appellant was totally and permanently disabled, notwithstanding the work he did. “The general principle announced in numerous cases is that a right, question, or fact distinctly put in issue, *143and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.” Southern Pacific Railroad Co. v. United States, 168 U.S. 1, 48, 18 S.Ct. 18, 27, 42 L.Ed. 355.
The prior judgment established not only appellant’s total and permanent disability as of May, 1918, but also the fact that such condition persisted to the date of the jury’s verdict; and that the circumstances were such as to render it reasonably certain that the disability would continue throughout life. That judgment, it seems to me, clearly foreclosed evidence of work previously done, since the present materiality of such evidence is necessarily limited to the inference to be drawn from it, namely, that as appellant was shown to have been able to work during the earlier period he is able to work now, no change in his condition appearing. This chain of logical inference was broken by the intervening judgment, and evidence of the work became immaterial.
It is said that the proof was not offered or received as bearing on appellant’s ability to labor at the time the work was done, but solely for the purpose of throwing light on his ability to labor now.1 I think-the argument is specious. In itself, the fact that appellant worked is of no importance; it has significance only as bearing on the issue of disability. In war risk insurance cases, as is well known, the ability of the veteran to follow a gainful occupation is invariably subjected to an empirical test— the extent to which he has actually pursued gainful activities. The judgment in the first suit conclusively determined the proposition that appellant, whatever may have been the extent of his labors, was nevertheless totally disabled. What the Government is now attempting to do is to create an inference of present ability to work by proof of ability to work during the former period, in the teeth of the adjudication to the contrary.
In suits of this type the real problem is whether, in the period following an established disability, the veteran has recovered the ability to follow continuously a substantially gainful occupation. See Kontovich v. United States, 6 Cir., 99 F.2d 661, 665. To permit evidence of the kind here in question would subvert the trial into an inquiry whether the veteran ever was disabled. There must be an end to litigation. Discontent with the outcome of the suit, or neglect fully to present available evidence, is no warrant for rejecting the binding force of the judgment. Otherwise, the Veteran’s Administration would be free to compel the insured to establish his disability over and over again on the same set of facts.
On the basis of the main opinion, a careless or stubborn administrator may, within a few weeks after a judgment of total disability has been obtained, declare that the insured has recovered, and in proof of his present capacity introduce evidence of work performed prior to the judgment, whether or not it was produced at the former trial. In this way the Bureau may arrogate to itself, of its own motion, the right to obtain a new trial of an issue already solemnly determined. It is beside the point that, though a different result is obtained on the second trial, the Government does not thereby escape the obligation of paying accrued benefits in line with the first judgment. The principle of res judicata is not so narrow as that.
The difference between the assumed case and the present one is purely a difference of degree; and it can hardly be said that evidence of prior labors becomes admissible through mere lapse of time. Where recovery is claimed and a second suit made necessary the inquiry should ordinarily be limited to the condition and activities of the veteran subsequent to the previous adjudication. Of course, evidence of prior facts and circumstances will inadvertently creep in during the trial of *144such cases, and sometimes such facts may have an explanatory value giving them an independent relevancy. It is not always that the reception of evidence of this sort is improper or will justify a reversal. Here, however, the testimony objected to had no tendency to explain the nature of the adjudged disability or to throw any light on the question whether the insured had recovered from it. The majority make no such claim for it. So far as I am able to appraise it, the immediate and sole probative effect of this evidence was to show' that the adjudged disability never in fact existed. Nor was its introduction inadvertent ; it was deliberate and, purposeful, and the evidence was marshalled with calculated regard to its effect.
The claim has been made that the evidence was robbed of its prejudicial effect by the instruction of the court that “* * if you find that the plaintiff instituted suit in this court against the defendant some time prior to July 2, 1928 and that thereafter judgment was rendered in favor of plaintiff and against defendant upon the verdict of a jury returned November 2, 1927, that plaintiff was permanently and totally disabled from May 1918, and that plaintiff recovered the installments of his insurance accruing up to the date of the verdict, then you must accept it as a fact that plaintiff was totally disabled at the time of the verdict from following any substantially gainful occupation, and that he had been continuously so disabled since May 1918, and further that such disability existed under conditions which rendered it reasonably certain as of November 2, 1927, that such total disability would continue throughout the life of the plaintiff.”
This instruction was appropriate and should, indeed, have been given in any event; but it did not cure the damage done by the testimony improperly admitted. I think it was not possible for the jury to dismiss from their minds the extensive evidence of the prior work record, nor were they told to disregard it. On the contrary, they were instructed to consider it.
Juries are not trained to make finespun distinctions. Here they were required to accept it as a fact, that appellant was totally arid permanently disabled in .November, 1927,. and at the same time instructed to give weight to compelling evidence that he was not then disabled. The feat is one impossible of performance even by an experienced judge. As observed by Justice Cardozo in Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 25, 78 L.Ed. 196, “discrimination so subtle is a feat beyond the compass of ordinary minds.”
The majority opinion holds that there was no error in overruling appellant’s objection to the form of the verdict submitted to the jury. This was as follows: “We, the jury in the above entitled action, find for the plaintiff, and fix the date of the beginning of his permanent and total disability from --.” I think the jury in this type of case should not be asked to fix the date of commencement of the insured’s disability. That date has already been determined by the former judgment. Aside from this, the insured is not required to prove, and in this case offered no evidence to establish, any precise date as the beginning of disability. The issue here was whether the disability had continued and was in existence subsequent to January, 1936. The form of verdict was confusing and impossible of adoption.
For the reason first discussed I think the judgment should be reversed and a new trial ordered.
Presumably in an attempt to limit the effect of the evidence the following instruction, with others of the same import, was given: “The jury are again instructed this testimony is received only as it may have evidentiary effect upon the issue in this case, to wit; whether or not the plaintiff was, on or before January 31, 1936, totally and permanently disabled and is now and is likely to continue so in the future. It is only on that question that this testimony is received and the jury will consider it so limited.”