Appellee, as guardian, brought suit under the provisions *945 of section. 445, tit. 38, U. S. C. (38 USCA § 445), to recover on a policy of war risk insurance of $10,000, payable in monthly installments of $57.50, issued to Earl Jonah Cox, on the ground that said policy had matured because he had become totally disabled while in the service of the United States from shell shock, which rendered him insane and incapable of сontinuously following any gainful occupation. The case was tried without the intervention of the jury, and resulted in a judgment for appellee as guardian of the sоldier for $5,232.50, the amount of accrued and unpaid installments, and for further monthly payments of $57.50 under the terms of the policy.
The evidence is not in the record, but the eourt made rather extensive and comprehensive findings of fact, which were not excepted to. Those material to a decision are, in substance, as follows:
Earl Jonah Cox, when mentally and physically sound, was drafted in the military service of the United States March 7, 1918. On March 15, 1918, he was granted the policy sued on, аnd while in the military service of the United States he became totally mentally unbalanced, and was treated in various military hospitals for his mental illness. After his return to the United States, he was in the Cook County Hospital, suffering from dementia prsecox, and was insane, and thereafter he was transferred to the military hospital at San Antonio. He was granted a furlough from that hospital to return to his mother in Dallas, Tex., and went there in care of an attendant. He was returned to the military hospital at San Antonio with an «attendant, and on July 17, 1919, was honorably discharged from military service, on a certificate of disability, by reason of dementia praeeоx, and was reported by the discharging officer as one-half disabled. He was returned to his home in Dallas with an attendant or guard. The policy was in force when he was discharged and up to August 31,1919. No premiums were paid after July, 1919. In a proceeding which was instituted at the request of the Veterans! Bureau, he was adjudged to be a lunatic by the county court of Dallas county, Tex., on September 14, 1919. Subsequent to his discharge from the service, he was erratic, argumentative, and radical in his аctions, and for several months subsequent to his discharge from the service he made no effort to engage in any kind of employment. Prior to his entry into military servicе, he was a motion picture operator, and he was employed as such in a moving picture theater by K. G. Wright, who was a friend of the family, from May, 1920, for a period of about 12 months, at a salary of $25 per week, whieh'wages were paid directly to him and were not received by his guardian. While so employed, he was рeculiar and cranky, and on one occasion quit work and told his employer that the patronage of the show did not justify the payment of his salary, although hе had never failed to receive it. His employer did not know he had been adjudged a lunatic, or was under guardianship, and, because he was a friend of the family, his employer tolerated talk and argument from Cox that he would not have put up with from a stranger, but his operation of the picture machine was satisfactory. He was discharged from that employment when the theater changed hands, and after that he was employed as a motion picture operatоr in various theaters for short periods, but his services were unsatisfactory, and he was discharged for that reason. The eourt specifically found that Cox was оf unsound mind at the time he was discharged from military service, and continuously from that date until the present time he has been of unsound mind, unable to continuously follow any substantial, gainful occupation, and therefore is now, and has been ever since his discharge from the military service of the United States, permanently and totally disabled.
The theory of the government seems to-be that Cox was able to secure employment at his former occupation within a month.or two after hе was discharged, and therefore could not be considered totally and permanently disabled, so is not entitled to recover on the policy at all; and further, perhaps, that during his employment he should have paid the premiums on his policy. In support of this a number of cases dealing with contracts of acсident insurance are cited.
Cases dealing with ordinary contracts of insurance are generally not applicable when considering policies of war risk insurance. A policy of war risk insurance is more or less a gratuity from the government, and was so designed to be. The United States assumed all of the extraordinary risks of war, and issued for the minimum premuim what might be termed combined accident and life insurance policies, largely in return for the sacrifice to be made by the mеn of the •United States in defense of their country. These policies and the law generally are entitled to the most liberal construction in favor of a soldier. U. S. v. Law (C. C. A.)
The regulations adopted by the. Bureau of War Risk Insurance define permаnent and total disability as follows:
“Any impairment of mind or body which renders it impossible for the disabled person to follow continuously any. substantially gainful occupatiоn shall be.deemed, in articles III and IV, to be total disability.
“ ‘Total disability’ shall be deemed to be ‘permanent’ whenever it is founded upon conditions, which render it reаsonably certain that it will continue throughout the life of the person suffering from it. Whenever it shall be established that any person to whom any installment of insurance hаs been paid as provided in article IV on the ground that the insured has become totally and permanently disabled, has recovered the ability to continuоusly follow any substantially gainful occupation, the payment of installments of insurance shall be discontinued forthwith, and no further installments thereof shall be paid so long as such recovered ability shall continue.”
There could be no doubt that the facts found bring the case fairly within the intention and meaning of this regulation, as we do not think his.temporary employment, under the conditions existing, would be sufficient to show that Cox was not permanently disabled. As an interdict he was incapable of entеring into a legal contract of employment, and it is reasonably certain that he could not have secured employment from any but a friend who would put uр with his idiosyncrasies. Ability to continuously follow a substantial, gainful occupation implies ability to compete with men of sound mind and average attainments under the usuаl conditions of life. Argument is not needed to demonstrate that one who has been officially declared insane and has exhibited the vagaries that Cox did could not successfully so compete, although he might have lucid intervals in which he eould render satisfactory service. This conclusion finds support in the reasoning оf the court in the following eases: Starnes v. U. S. (D. C.)
The judgment appealed from is amply supported by the findings of fact. The government can suffer no injustice in this easе. The law regards insanity as a temporary condition, though it usually exists until death. If in the future Cox should regain his mind, the way is open to have his interdiction set aside, and his status as a sane person restored.
We find no error in the record.
Affirmed.