(dissenting).
I dissent for two reasons: (a) The evidence in this case, similar to the evidence in the previous case, not only fails to furnish support for a finding of total and permanent disability on September 15, 1919, but conclusively shows plaintiff was not thus disabled, (b) The law of the case required the District Court to follow the decision of this court (82 F.2d 655) and direct a verdict in defendant’s favor.
The War Risk Insurance Act evidenced an appreciative sentiment on the part of the Government towards the veterans of the World War. It was intended to, and did, provide generous treatment for them. While in no way connected with the more generous treatment of the sick and disabled veterans, it was inspired by the same motive. The policy, which it issued to each veteran, provided for the payment of $10,000 in case he was totally and permanently disabled. No premium payments were required during the insured’s total disability.
With such generous treatment, we are all, no doubt, in full sympathy. But such a policy does not require, nor permit, courts to change or enlarge their functions. They are not authorized by the Government to make contributions to veterans. Their duties are the same as in other cases,— to study the facts and apply the law. To be specific, — to ascertain whether, in September, 1919, plaintiff was totally and permanently disabled. And to be still more specific, to inquire if there is any evidence which would sustain a verdict or finding that plaintiff was, on September 15, 1919, totally and permanently disabled.
The facts are fully stated in the opinion upon the previous appeal. United States v. Cole, 7 Cir., 82 F.2d 655. Plaintiff’s policy expired for non-payment of premiums on September 15, 1919, unless he was at that time totally and permanently disabled.
As to his physical state on that date, three witnesses gave positive testimony in writing. One was the plaintiff. One was plaintiff’s captain. One was a doctor, the Major in the Army who examined plaintiff.
On the date of his discharge in September, 1919, plaintiff was asked concerning his physical and mental condition, and in writing he made the following statement:
“Question. Have you any reason to believe that at the present time you are suffering from the effects of any wound, injury, or disease, or that you have any disability or impairment of health, whether or not incurred in the military service.
“Answer. No.”
This statement was duly witnessed.
*474At the same time plaintiff was examined by Major J. L. Haskins of the U. S. Army, who, in writing, stated:
“I certify that the soldier named above has this date been given a careful physical examination, and it is found that he is physically and mentally sound. In view of occupation he is non per cent disabled.”
Upon such written statements plaintiff was honorably discharged. In the discharge, he and his captain, in writing, made the following statement:
“Wounds received in service: None * * *
“Physical condition when discharged: Good.”
This testimony is not contradicted nor disputed. No other witness testified as to his condition on that date.
Nor has there been any attack on the integrity or verity of any of these statements. No mistake, no misrepresentation, no fraud in their preparation or execution is charged or intimated.
Notwithstanding this fact, we are asked to repudiate all three statements. More, we are asked to find that, at said time, when the plaintiff, his captain, and his doctor were all convinced that he was in good health — was physically and mentally sound —plaintiff was in fact totally and permanently disabled.
Quite impossible did this seem to me in Í936, when, speaking for this court as then constituted, we held a verdict that plaintiff was totally and permanently disabled could not stand. Speaking for myself, only, I again say that it is equally impossible to reconcile a verdict of total and permanent disability with these solemn, undisputed, and unchallenged statements of sound body and mind, made in 1919, when personal and financial interests were absent.
The testimony, upon which the action of the court in sending the case to the jury and the verdict, itself, must rest, came from several doctors who are quite well agreed as to the causes of plaintiff’s condition as they found it in the last ten years of his life.*
Our study must be confined to plaintiff’s physical condition in September, 1919. In order to locate dates and ascertain causes, however, I have studied the medical record made subsequent to 1919. The doctors seemed to agree that his condition in the ’30s was due to two specific causes: (a) cerebral spinal syphilis; (b) exophthalmic goitre.
There is some reference at times to enlargement of thyroid glands. The thyroid gland is here mentioned because it appears in the doctor’s report, but it does not seem to have had much, or any, acceptance by the medical witnesses as the cause of plaintiff’s later condition. Most important, and certainly equally important as all other causes, was the syphilitic condition of plaintiff. The treatment therefor was extensive. At times there was improvement in this respect, but later examinations disclosed its aggravation and further efforts were made to overcome it.
There was no evidence to show that plaintiff suffered from this cerebral spinal syphilis before 1921. The year 1921 also fixes the first date when the exophthalmic goitre was discovered. More pronounced were both in the ’22, ’23, and ’24 reports. The causes of plaintiff’s troubles in ’23 and ’24 were cerebral spinal syphilis and exophthalmic goitre. These facts are based on the contents of reports of doctors and hospital records where plaintiff received medical treatment.
To set forth the other evidence which consisted largely of testimony of laymen who met plaintiff anywhere from thirteen to sixteen years after his discharge, would be unwarranted. From their statements it could be said there was possibly a question as to plaintiff’s total disability in the ’30s, but surely the testimony had no bearing on his condition in 1919.
I am convinced that plaintiff’s present condition (whether it be a total or a partial disability) is traceable to the syphilitic condition and to a lesser degree to the goitre. There is no evidence that plaintiff had either syphilis or an exophthalmic goitre in 1919 when he, his captain, and his major gave their free, voluntary statements, that he was sound and free of all disabilities. Even had he then suffered from syphilitic symptoms and failed to disclose them to his captain or to his doctor, it must be apparent they were not of the extent which justified a finding of total disability. Nor could they be defined as totally disabling, when he worked the *475following winter on the farm for $60 a month and later for $45.
Law of the Case.' For another reason, the court should have directed the verdict in defendant’s favor. Instead of following the “law of the case” the District Court submitted the case to the jury on substantially the same evidence as was received on the first trial.
The law of the case is founded upon the desire for, and the necessity of, a final determination of litigation. If the appellate court reverses the District Court, and the District Court refuses to follow the ruling of the appellate court, litigation would be interminable.
It must be admitted that in cases like this, and many other situations, the District Court may well believe that his decision is more sound than that of the court which reverses him. He is entitled to that opinion. Nevertheless, orderly procedure requires that he accept the conclusion of the appellate court when, for a second time, the case is before him. There is a condition or proviso attached to this rule, which I have no doubt the District Court believed to be applicable, namely,— it does not govern unless the evidence on the second trial is the same, or substantially the same, as on the first trial.
A good statement of the “law of the case” is set forth in 15 Ruling Case Law, page 959.
“ * * * Thus a decision on a former appeal, that the evidence was insufficient to overthrow a will, may become the law of the case upon those facts, and if the evidence is substantially the same upon a retrial of the cause, the question as to the validity of the will becomes res judicata. The mere addition of new matter to a pleading, or to the body of the evidence, is not su-fficient to avoid the rule as to the law of the case. An amendment to the pleading or the introduction of new evidence, to escape the operation of the rule, must be such as to present a new and substantial change in the facts before the, court.”
For like holdings, see Johnston v. Jones, 1 Black. 209, 17 L.Ed. 117; 34 L.R.A. note, page 332; International Brotherhood of Elec. Workers v. Western Union Tel. Co., 7 Cir., 46 F.2d 736; Nat. Brake & Electric Co. v. Christensen, 7 Cir., 38 F.2d 721; 5 Corpus Juris Secundum, Appeal and Error, § 1821, p. 1267.
As I view it, there was practically no substantial difference in the testimony as to plaintiff’s 1919 condition on the two trials. Such difference as occurred would still require the application of the law of the case, for it was restricted to witnesses who saw plaintiff for the first time in the ’30s. Briefly stated, the differences were as follows: On the second trial there was testimony that after the Armistice, plaintiff was made a member of the military police which, according to the undisputed testimony, consisted of picked men. Instead of tending to show more disability shortly before his discharge, this would tend to show greater fitness and a better physical condition than was enjoyed by the average soldier.
Four laymen also testified. One met him eighteen years after his discharge. Another met him seventeen years after; a third, twelve years after, and a fourth* six years after his discharge.
Two of the witnesses were meat and grocery salesmen. Each was selling goods to the plaintiff or plaintiff’s wife. One said the plaintiff never complained to him of poor health or sickness. The third witness was his second wife, whom he met in 1931. He married his first wife in 1922. The other witness, who saw him as early as 1926, gave no testimony which would hurt or help either side.
In addition there was a Dr. John C. Vaughan. He stated he first saw the plaintiff the second of February, 1941, or twenty-two years after his discharge. In addition to being a surgeon, he qualified by saying he “worked on ranges, punched cattle, drove pack trains, mushed dogs, worked in mines, lumber camps, and ordinary work a person does in hoboeing around the western country twenty or thirty, forty years ago. I was brought up at sea and knew something then about a sailor’s routine aboard ship.” He stated, “My conclusion is that he is shell shocked. That is a broad term but it is a term that is used.”
In another respect — the absence of certain testimony — the two trials were alike. Plaintiff stated he was treated in 1919 by Dr. McGinnis. He did not produce this doctor on the first trial. We commented in our opinion on this failure to produce the doctor who treated him at the date nearest the day of his discharge. On the second trial, he also failed to produce the doctor.
*476On the entire record, I think it must be said, the evidence was substantially the same on the second as upon the first trial on the vital and determinative issue of the case. The law of the case was therefore applicable.
Whether he was totally and permanently disabled in 1939 or even in 1931 when he married his second wife, or in 1935, when he engaged in the restaurant business, is quite outside the question which confronts us.