Document 4vZy1bV9ZL8a9V5mEy0MpMnEV

FILE NAME: Owens Illinois (OWILL) DATE: 1940 DOC#: OWILLOIO DOCUMENT DESCRIPTION: Legal - Decision from Federal Reporter 310 110 FEDERAL REPORTER, 2d SERIES court below found the Autocar axle to have a root diameter at the splines substantially equivalent to the diameter of the body of the shaft, and perceived the only difference between the two to be a reduction in the size of the splines, while conceding the dif ficulty of comprehending any great im provement in the patent over prior art and acknowledging deference to the evidential presumption of validity residing in the pat ent grant. The Autocar prior use was not, however, before the examiner in the patent office, and no presumption of validity may overcome a pertinent prior art reference not there considered. Defier's Walker on Patents, 2010; Goodbody v. Firestone Steel Products Co., 6 Cir., 23 F.2d 625, 626; R. Hoe & Co. v. Goss Printing Press Co., 2 Cir., 30 F2d 271, page 274. the paten expedient) of the art] tion, and The de| manded is that aft by d skill inven- VANDENBARK v. OWENS-ILLINOIS GLASS CO. No. 8151. [7] It is not necessary to decision that we recognize the Autocar prior use as com plete anticipation of the claims in suit Perhaps it was n o t It nevertheless so limits the forward step of the patentees that it is difficult, if not impossible, to recognize their achievement as more than designing a larger and, therefore, a stronger axle than had been made before by resort to expedi ents well understood in the art, and utilized when the need became apparent, and practi cal manufacturing considerations made the change feasible. We have already ob served, Firestone Tire & Rubber Co. v. United States Rubber Co., 6 Cir., 79 F.2d 948, that in mass production industries in novations requiring expensive machinery and retooling of plant do not always follow immediately upon recognition of their need. Much has been made in brief and argu ment of the so-called "run-out" of the splines into the unconfined portion of the spline end of the shaft as contributing to the strengthening of the shaft at that end. There is a dispute as to what the evidence shows as to the Autocar shaft in this re spect, although there would seem to be no patentable distinction between a spline which runs down from its outer diameter to the body diameter, and a groove which runs up from root diameter to body diame ter. In any event, there is persuasiveness in the evidence that this is but a recognized mechanical expedient for bringing the tool out of the groove and avoiding sharp changes in shaft diameter which had long been recognized as contributing to break age at that point. Our conclusion, upon a consideration of all aspects of the case, and with caution against being misled by ap- Circuit Court of Appeals, Sixth Circuit March 18, 1840. I. Courts <370 The federal courts have an indepen dent jurisdiction in administration of state laws co-ordinate with, and not subordi nate to, that of state courts, and are bound to exercise their own judgment as to meaning and effect of those laws when interpretation has not been settled by definitive interpretation by state courts, and when rights have accrued under a particular state of decisions they may adopt their own interpretation of the law applicable to the case although a differ ent application may be adopted by the state courts after such rights have ac crued. 28 U.S.CA. 725. Z Courts =370 A decision of highest court of state construing a state statute rendered a r.tr a judgment of a federal District Court cannot be given a retroactive effect so :.s to make that erroneous which was n-.t ?-> when judgment of that court was giver;. 28 U.S.C.A. 725. 3. Statutes 263 "A Taw' is "presumed, in absence r : clear expression to the contrary, to in tr ate prospectively, and for a statute to k construed as operating retrospectively, retrospective character must be derived from unequivocal and indexible- import <*i the terms, and manifest intention of tlie legislature. 4. Courts C=3G6(23) A judgment of federal District Or:-: diirnivsii'.g actio n fo r o ccu p atio n al u.s- VANDENBARK v. OWENS-ILLINOIS GLASS CO. 3U no r.td no on ground that petition failed to of Ohio, Western Division; Frank Le cause of action cognizable under Ohio Blond Kloeb, Judge. against an employer complying with tjtfakiucii's Compensation Act, could not Jm reversed because of unconstitutional* of Ohio decisions announcing rule apffiied in judgment, where alleged uncon'Sritodonality was rejected by Ohio Su^veae Court, and an appeal to Supreme Court of the United States was dismissed Action by Virginia Vandenbark against the Owens-Illinois Glass Company to re cover for occupational diseases contracted by plaintiff while employed by defend an t From a judgment of dismissal, the plaintiff appeals. Affirmed. for want of a substantial federal ques Paul D. Smith and Thomas H. Suther tion. GemCode Ohio, 1465-70; 1465- land, both of Marion, Ohio, for appellant. dfc, as amended 117 Ohio Laws, p. 268; Lawrence E. Broh-Kahn, of Toledo, CbnstOhio, a r t 2, 35; 28 U.S.C.A. Ohio (Williams. Eversman & Morgan. H. ' m A. Middleton, and L. T. Williams/all of A Coarts <3=370, 406(2) Toledo, Ohio, on the brief), for appellee. A judgment of federal District Court Before SIMONS, ALLEN, and ARin diversity of citizenship case, which dis ANT, Circuit Judges. missed action for occupational disease of silicosis on ground that petition failed to state cause of action cognizable under Ohio law against employer complying with Workmen's Compensation Act, which judgment was right when entered, could not be set aside because of new pro nouncement by Ohio Supreme Court, or hr subsequent amendment to Workmen's Compensation Act making silicosis com pensable, which amendment was not retro active. Gen.Code Ohio, 1465-70; 1465-68a, as amended 117 Ohio Laws, p. 2*P: Const.Ohio, art. 2, 35; 2S U.S.C.A. J 725. SIMONS, Circuit Judge. The judgment assailed by the appeal is one dismissing a suit to recover for oc cupational diseases allegedly contracted by the appellant while employed in the glass factory of the appellee. The mo tion to dismiss was sustained on the ground that the petition failed to state a cause of action cognizable under Ohio law against an employer complying with the provisions of the Workmen's Compensa tion Act, Ohio General Code, Section 1465-70. It was conceded at the outset that when 6. Courts C=40S(2) the judgment was rendered, decisions of On appeal from judgment of federal the courts of Ohio were contrary to the District Court dismissing action for oc contentions of the plaintiff, but the appeal cupational disease of silicosis on ground should be given consideration, it is urged, that petition failed to state cause of ac because of two changes in Ohio law since tion cognizable under Ohio law against an the entry or the challenged judgment, one employer complying with Workmen's Com- a shift of judicial interpretation of the Act, which judgment was right Workmen's Compensation Act by the Ohio when entered, cause would not be remand Supreme Court, expressly overruling pre ed so that District Court might pass upon vious decisions as to compensability for sufficiency of petition in view of altered occupational diseases, and the other an Interpretation of the Ohio Supreme Court, amendment to the Act to include a dis and of amended statute making silicosis ease charged in the petition to have been compensable, since Ohio decisions, extant contracted by the plaintiff while in the " " " it time of trial, controlled the judgment, employ of the defendant. The problem * and hence there was no issue that might being thus stated, the court, of its own mo not be decided bv Circuit Court of Appeals, tion, called attention to the then recently (f CemCode Ohio,' 1465-70; 1465-68a, as decided case of Peter J. Carpenter v. Wa `/ :r X amended 117 Ohio Laws, p. 268; Const, bash Ry. Co. et al,, 60 S.Ct. 416, 84 L.Ed. -t UOhio, art. 2, 35; 2S U.S.C.A. 725. , announced January 29, 1940, and re i" ALLEN, Circuit Judge, dissenting. quested the views of counsel as to wheth er it bore upon the present controversy, and if so, whether the cause should be re manded to the District Court for con '"Appeal from the Di-trict Court of the sideration of the changes in Ohio law in ' ted States for the Northern District the light of the holding and reasoning of 312 110 FEDERAL REPORTER, 2d SERIES the Carpenter ease. Counsel requested opportunity to file supplemental briefs dealing with questions suggested by the court They have now bees received and given consideration. Article 2, Section 35 of the Constitution of Ohio, authorizes the passing of laws establishing a state fund out of which to pay compensation for death, injuries or occupational diseases, payment to be in lieu of all other rights to compensation or damages from any employer who pays the premium or compensation provided by law, the employer noTto be liable to respond in damages at common law or by statute for such death, injuries or occupational disease. The original Workmen's Compensation Act, enacted in 1913 by virtue of this authority, included no provision for compensation due to occu- pational disease. By amendment, however, effective August 5, 1921, 109 Ohio Laws, p. 183, specific provision was made for compensation for 15 enumerated occupational diseases. By amendment effective July 21, 1929, 113 Ohio Laws, p. 257, the number of such occupational diseases was increased to 18, and by still another amendment effective July 18, 1931, 114 Ohio Laws, p. 28, the number was increased to 21. Up to the time of the judgment below, however, the schedule of compensable occupational diseases failed to include those complained of in the ap- pellant's petition, or her amended peti tion. In the pleadings it was conceded that the defendant had complied with the Workmen's Compensation Act, both with respect to industrial accidents and occupa- tional diseases. For almost 25 years it had been the law of Ohio that the common law right to recover for occupational disease contracted in the employ of those complying with the terms of the Workmen's Compensation Act had been taken away by Section 1465-70 of the General Code, the leading cases announcing the rule being Zajachuck v. Willard Storage Battery Co., 106 Ohio St. 538, 140 N.E. 405; Mabley & Carew Co. v. Lee, 129 Ohio St. 69, 73, 193 N.E. 745, 747, 100 A.L.R. 511. It was said in the latter case, "It is readily apparent that the present amendment pro vides a new and comprehensive definition of the rights and liabilities of employers and employees. Under it certain new rights were created and some former ones were abolished. * * * " Some months after the judgment below, and while appeal therefrom was pending, a divided Ohio Supreme Court in the consolidated case of Triff, Adm'x v. National Bronze & Aluminum Foundry Co. and 1. 20 N.E.2d f 2' U 3i aJ * ^ " c.d ,ts. ear* I '" view of the effect of the Ohio statute TMd. teXPT WT* ? ed Zajachuckr and Mabley & Carew Company cases. Like- ^ r L 'TM - anRd S l t T ' j j 1' 1^?7' ei^9?deT^)Iu0' a s a * " ^ 1^ Ohto Laws, p. 268, the 0 h `? ^ t u r e again amended the Uork- <'P*J,*at," ^ ct adding silicosis s<* ? d u e * diseases ?*erem " ad* compensable, this disease bc- `nff. one *harged in the plaintiff's petition [? I`av* b*e" , contracted by her while m defendants employ, Save for alleged constitutional infirmity not vigorously pressed, it is conceded that when the court below dismissed the plain* tiff's petition it correctly applied the state hiw under the mandate of Section 34 of thc Judiciary Act, 28 U.S.CA. $ 725, as its h^* decision. This brings us to the question whether a judgment of a Fed- era* 9?rt' a diversity of citizenship 5asc' `hen entered, must be set asm- because of a new pronouncement by tn, cour* o f. last / esortt of th stat* " t:;c co" structln * a stat* statute, or by a bsequent amendment to the statute. [1,2] It has long been settled law the: the Federal Courts have an independen: jurisdiction in the administration of jaws coordinate with, and not subordinM'i t0f that o{ the State Courts, and arc be-,! t0 eJcercise their own judgment as to the meaning and effect of those laws when in terpretation has not been settled by de:":-:tive interpretation by the State Courts. :.r i when rights have accrued under a : ticular state of the decisions they adopt their own interpretation of the ! applicable to the case, although a diiixrcr.: application may be adopted by the S Courts after such rights have accri. Burgess v. Seligman. 107 U.S. 20, 33. 2 ' Ct. 10, 27 L.Ed. 359. A decision of highest court of the State construing ' State Statute rendered after a judgr.:-. of a Federal District Court, cannot ' given a retroactive effect so as to n'--that erroneous which was not so when : judgment of that court was given. < " cordia Insurance Company of Milw.vr-iyv. School District No. 98, 282 U.S. 5I.:. "precis ether . 3y ap; `was i l with s i.1f th invol preaches le ^ th e rule riMhring fee -unfetter [dfeiary Act. -i `.^Gypsum Co., *Gdorado & 5 W i 503, 32 .. .-appeal ire . bsf resort r - decision of when made. Sr 290, 32 S -t Watts, Watts A etc., 248 * K H 3 AX.R. cases decided and in such c dispose of th quire, and as If the District . eat case advet have defied tl Act It woul the decision wrong, or tha compel revers rectly applyh event if th. ; rado & Ss i be given of the ci' :jr we must dia In F/i-v S. - coasicc, ci Morgu. . - L E d 823 ; 7, 598. 15 L.Ec. : U.S. 119, 12 . v. Seligman, . hold these some clear pro: 1*-Court. ; ^ I n Carpenter court con ndment to sequent to f onal ininn, n o Kaie VANDENBARK v. OWENS-ILLINOIS GLASS CO. 313 no a m '275, 75 L.Ed. 528; Board v. Deposit 6 Cir., 124 F. 18. e precise question that meets us here Whether a Federal District Court has jy applied state law at the time dewas made, and must not be confated with situations calling for the appliof the rule governing decision of ease involving state law at the time it Irst reaches a Federal reviewing court, idr the rule governing decision of cases Involving federal law by reviewing courts dtes unfettered by Section 34 of the Ju sticiary A ct Michalek v. United States :Gn*um Co., 298 U.S. 639, 56 S.C t 679, 80 L.Ed. 1372, doesn't reach it. Gulf, Colorado & Sante Fe R. Co. v. Dennis, 224 U.S. 503, 32 S.C t 542, 56 L.Ed. 860, is a a appeal from the decision of the court of last resort of the state and not from a decision of a lower Federal Court, right when made. Crosier v. Fried et al., 224 U. S. 290, 32 S.Ct. 488, 56 L.Ed. 771, and Watts, Watts & Co., Ltd., v. Unione Austriaca, etc., 248 U.S. 9, 39 S.Ct. I, 63 L.Ed. 100, 3 A.L.R. 523, are admiralty and patent cases decided upon the original record, and in such cases the court is required to dispose of the issues as justice may re quire, and as law then existing compels. If the District Court had decided the pres ent case adversely to the appellee, it would the filing of a claim based upon such judg ment with an assertion of its priority, the denial to it of preferred status by the Dis trict Court, and affirmance of the judg ment by the Court of Appeals. The amend ment for the first time gave such claims the same priority against equity receiver ships of railways as they had had pre viously against trustees in bankruptcy. Assuming that the determination by the Court of Appeals, as the law then stood, was correct upon the record, the court stated the controlling principle to be that announced by Chief justice Marshall in United States . Schooner Peggy. 1 Cranch 103, 110, 2 L.Ed. 49, as follows: "It is in the general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not. But if, subsequent to the judg ment, and before the decision of the ap pellate court, a law intervenes and positive ly changes the rule which governs, the law must be obeyed, or its obligation denied * * * In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside." Lifted from its context in the original decision or in that in which it is quoted, the principle, have defied the mandate of the Judiciary, f of universal application, would seem to Act. It would be anomalous to now hold indicate reversal, We may not, however, the decision right because it was then so insulate it. wrong, or that a state court has power to compel reversal of a federal decision cor rectly applying existing state law. In any event, if the principle stated in Gulf, Colo rado &: Sante Fe v. Dennis, supra, is to be given general application regardless of the circumstances to which it applies, we must ignore the later cases of Concor dia Ins. Co. v. School District, supra, and Edward Hines. Trustee v. Martin, 268 U. S. 438, 45 S.Ct. 543, 69 L.Ed. 1050, and consider as overruled the earlier decisions of Morgan v. Curtenius, 20 How. 1, 3, 15 LEd. S23; Pease v. Peck, IS How. 595, 593, 15 L.Ed. 518; Roberts v. Bolles, 101 U.S. 119, 128, 129, 23 L.Ed. SS0; Burgess 'V. Seligman, supra. It is not for us to : hold these decisions overruled without A*ome dear pronouncement by the Supreme Court. [3] In its application to the facts of the Carpenter case, the Supreme Court was not content to rest decision upon the bare statement of principle as though it would universally apply. It was careful to point out that the Federal Statute involved ap plied to equity receiverships of railroad corporations "now * * * pending in any court of the United States" [60 S.Ct. 418], and that it was considering such a case. This was in recognition of the fact that the statute was, by its terms, retro active in respect to claims that were still pending, notwithstanding they had arisen and been liquidated prior to the enactment of the amendment, and is not departure from the rule so often proclaimed that a law is presumed, in the absence of clear expression to the contrary, to operate pros pectively. United States v. Ilcth, 3 Cranch *; In Carpenter v. Wabash Ry. Co., supra, 399, 413, 2 L.Ed. 479; Shwab v. Dovle, court considered the effect of an 25S U.S. 529, 42 S.Ct. 391. 66 L.Ed. 747, Vnerdtui.:.t to ihc n.iiikruptcv Act made 26 A.L.R. 1454; United States v. Mag ^Oubscrjtte::: m die entry of a iudrrment for nolia IV.rnkum Co., 276 U.S. 160, 172, 48 ~onal inn.irv- .r...iinst an equity receiver, S.Ct. 236, 72 L.Ed. 509, or its necessary llOFuM doVi 314 110 FEDERAL REPORTER, 2d 8ER1ES converse, that for a statute to be construed as operating retrospectively, its retro spective character must be derived from "the unequivocal and inflexible import of the terms, and the manifest intention of the legislature", Union Pacific Ry. Co. v. Lara mie Stockyards, 231 U.S. 190, 34 S.Ct. 101, 102, 58 L.Ed. 179; or as said in United States v. Heth, supra, the declaration of retroactivity must be "clear, strong and im perative." Neither expressly or by implica tion is the established law in this respect overthrown. The amendment to the Ohio Statute here involved is not retroactive either expressly or by the necessary im port of its terms, and is not claimed to be so. The amended statute was, moreover, given effect in the Carpenter case not merely because, by the unequivocal import of its terms it was retroactive, but be cause it applied a statutory procedural remedy to bring about an equitable dis tribution of property, not exclusively the property of the mortgagees, but in the pos session of the court, and because a reason able classification of claims as entitled to priority by virtue of superior equities comes within the broad bankruptcy power of the Congress to provide for distribution of assets of insolvent estates or those in liquidation. Thus the court was applying an amendment which altered no definitive pri vate rights or liabilities matured before its effective date, but one which empower ed the court in the exercise of bankruptcy powers to effectuate the Congressional con cept of equitable distribution of property still in custodia legis. An added ground of distinction urged by the appellee, may be mentioned with out the need of resting decision thereon. It is pointed out that the* Carpenter case deals with a controversy lying wholly with in an integrated judicial system, while here we deal with an appeal from a court un der compulsion of rules of comity, and the specific mandate of the Judiciary Act to apply the rule of decision presently in force in a coordinate system of courts. Having rightly applied it, later decisions of the State Court do not require reversal, and the cases so holding not being within the rule of Swift v. Tyson. 16 Pet. 1, 10 L-Ed. S65, since the rule of decision in volved a Stale S tatute, arc ro t overruled b v E r ic R a ilro a d Co. v. T o n : *4 uts. SO V 1,', S. 64, 5* S .C t. S17, S2 L .E d .' llS S , 114 A. L.R. 14S7. [4 ] The constitutional attack of the appellant upon the validity of the State Court decisions announcing the rule ap plied in the judgment below, need give us little concern. The arguments supporting it were urged, with great insistence, by present counsel in the case of Moaingo v. Marion Steam Shovel Co., 130 Ohio St. 591, 200 N.E. 756, and in the application for rehearing thereon, but were rejected by the Ohio Supreme Court. An appeal to the Supreme Court of the United States was dismissed without opinion for want of a substantial Federal question, 298 U.S. 645, 56 S.Ct. 959, 80 L.Ed. 1376. [5,6] We consider, finally, the neces sity or propriety of remanding the cause to the District Court so that it may pass upon the sufficiency of the appellant's pe tition in view of the altered interpretation of the Ohio Court, and of the amended statute. The Carpenter case, supra, points the road to decision thereon. A similar contention was there made and rejected. I f we are. right in our view that Ohio decisions, extant at the time of trial, con trol the judgment, notwithstanding a later change of view, and that the amended Ohio Statute not being retroactive by the clear import of its terms does not require a reversal of the judgment there is no issue to be submitted to the court bek- that may not here be decided upon present record. The judgment below is affirmed. ALLEN, Circuit Judge, (dissenting). I cannot agree with the ccnckts! my associates. The judgment in 7-' Adtn'x v. National Bronze & A r,,:n-.i:.-: Foundry Co., 135 Ohio St. 191, 2u N .i-- 232. 121 A.L.R. 1131, which held that employee has a right of action again-: I employer for silicosis directly caused the employer's negligence, is binding : on us here. The gist of this dec!;, which is the latest utterance of the ' > preme Court of Ohio upon this quest-. :is that the employee has in Ohio a car.? of action at common law for occupati.:. disease arising out of neglect of the em ployer.' While Section 1465-70, Get;* r d Code of Ohio, is cited both in the sGi.d > and in the opinion, and other section.- the Ohio Code are also discussed for : purpose of determining whether they ' t:t!., :i aw ay the o. m utuii l.tw ru em ployee, since the slate court he'd d r righ. had ro t been altered by tarn s ot the statute, the deeis>"ii : UNITED STATES v. DUPRE 315 d y within the purview of Erie Rd. r. Tompkins, 304 U.S. 64, 58 S.Ct 817, 22, 82 LEd. 1188, 14 A.L.R. 1487. That declared that "Except in matters .governed by the Federal Constitution or ,, jTAy acts of Congress, the law to be applied ,* -tb any case is the law of the state. And ^w hether the law of the state shall be de- dared by its Legislature in a statute or '.u. >y its highest court in a decision is not a /^ tip a tte r of federal concern." > Nor is the doctrine declared in Carpen;ter v. Wabash Ry. Co., 60 S.Ct. 416, 84 L Ed. -- , limited as appears from the major ity opinion. While that case relied upon 4 United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49, an extract from which appears in the majority opinion, it also relied upon other decisions cited, among which is Gulf, Colorado & Santa Fe Ry. Co. v. Dennis, 224 U.S. 503, 32 S.Ct 542, 543, 56 L.Ed. 860. The court in that case, applying the principle of United States v. Schooner Peggy, supra, stated: "We think what was there said is, in principle, applic able here. For while, on a writ of error to a state court, our province ordinarily is only to inquire whether that court has erred in the decision of some Federal question, it does not follow that where, pending the writ, a statute of the state or a decision of its highest judicial tribunal intervenes and put an end to the right which the judgment sustains, we should ignore the changed situation, and affirm or reverse the judgment with sole regard vi the Federal question. On the con trary, we are oi opinion that in such a ca-e it becomes our duty to recognize the chr.r.ged situation, and either to apply the intervening aw or decision, or to set aside the judgment and remand the case so that the state court may do so." Cf. Crozicr r. Fried. Krupp Aktiengesellschaft, 224 U. .. 2<0, 32 S.Ct. 488, 56 L.Ed. 771; Watts, Watts & Co., Ltd. v. Unione Austriaca, etc.. 248 U.S. 9, 21, 39 S.Ct 1, 63 L.Ed. 100, 3 A.L.R. 323. As stated in 'he Watts / 'case, 248 U.S. page 21, 39 S.Ct. 1, 63 L.Ed. ,100. 3 A.L.R. 323, the court has power ^ -;ao t only to correct error in the judgment i '-'.entered below, but to make such disposition .Lof the case as justice may require; and '. j l i l determining what justice now requires, court must consider the changes in m and in 1 w which have supervened nee the decree bek>w was entered. The judgment of the District Court uld be reversed UNITED STATES V. DUPRE. No. 9321. Circuit Court of Appeals. F ifth Circuit March 12,1940. 1. Army and navy =>79(15) In order to recover on war risk policy, plaintiff must establish by substantial evi dence that before its lapse for nonpay ment of premiums, he was suffering from some physical impairment which prevents him from carrying on continuously a sub stantially gainful occupation, and that such impairment was based upon such condi tions as then rendered it reasonably cer tain that it would continue throughout his life. 2. Army and navy 4 7 3 (l) Total disability, unless permanent, is not sufficient to warrant recovery on war risk policy, and permanent disability, un less total, is not sufficient. 3. Evidence 1 4 The courts take judicial knowledge of fact that tuberculosis in its incipient stage is curable with proper care and treatment. 4. Army and navy 0=73(1) The fact that veteran subsequently died of tuberculosis is not sufficient to make out a case of permanent total disability warranting recovery on war risk policy despite lapse in payment of premiums. 5. Army and navy =>73(1) A veteran tailing to rest and take proper treatment pursuant to physician's advice in an effort to arrest disease cannot claim that temporary disability will be come permanent, so as to authorize re covery on war risk policy despite lapse in payment of premiums. . Trial =178 In determining whether verdict should be directed against a party, court must as sume as true on behalf of such party all the evidence in his favor, together with ail reasonable inferences that could justifiably be drawn from it, and determine whether verdict for him, if returned, would have to be set aside. 7. Army and navy C=79(20) In action on war risk policy, evidence indicating that veteran had incipient tuber- cub mlv tt tnne oi lapse of policy. and that incipient ttihereulos's is 73 or bU per cent curable, held to require directed verdict for the governin'!):.