LEWIS, Circuit Judge.
Appellee recovered on a $10,000- war risk insurance policy. He enlisted November 2, 1917, and was honorably discharged April 19, 1919. He arrived in France in January, 1918, and was sent to the front in March. After three or four months it became his duty to drive a ration cart delivering supplies to the front. This at times brought him within reach of enemy shell fire. He became very nervous and had pains in his stomach and vomiting. At times he couldn’t eat a meal and retain it. He had a burning in his stomach. This weakened him, and he answered sick calls. When it was quiet at the front he was better. At one time he was in bed in a barn for a week.
Immediately after discharge he went to his father’s home in Utah. After being there a week he went to his own farm of 65 acres. It was time to put in a crop. He drove four horses to a gang plow with harrows attached for about five days growing more nervous, weaker, and had pains in his stomach. He hired a man to continue plowing. He helped some on the farm throughout the season of 1919, fixed a fence, plowed a ditch, mowed, raked and hauled hay. He ran the derrick for three days, but couldn’t continue because of pains, vomiting, and burning in chest. When these came on he would go to the house and lie in the shade. He did part in cultivating the beets. Right after haying season in 1919 he went to Dr. Adam-son, now deceased, who gave him powders to take before and after meals and prescribed his diet to eonsist of soft boiled eggs, cream and cereals. He couldn’t cat meat except a little bacon.
In 1924 or 1925 his tonsils were taken out. About a year later his appendix was taken ont. In December, 1931, all his teeth were extracted.
Premiums on the policy were paid up to March 31, 1920.
He and Ms wife had some dairy cows. She did most of the milking. He helped her when he could. In 1924 he hired a boy to assist in. the milking, and since that time the hoy or a hired man has helped with the cows.
In the spring of 1920 he started to help put in the crops, but soon found that the pains, burnings in his stomach and vomiting came on. It made him weaker. He hired a man to do the work. He drove the team to the wagon at times. He did some mowing of hay and looked after the derrick part of the time in 1920. He went to the field at times with his wife in 1920 and 1921. She would either hold the plow ox drive the team, and he would do the other. . He drove the team in hauling sugar beets to the dump in 1920. In 1921 he helped to farm very little. Apparently he was slightly gassed in May, 1918, to whieh he attributes the burning in his chest. In 1923 he spent $1,500 in building a bam. Since then he has made oilier improvements that cost approximately $3,000. His farm is irrigated land, and since his discharge he has put every hit of it to use every year, there being three acres in pasture. His pains have increased and his vomiting has become more frequent.
On January 4, 1930, he submitted to a surgical operation known as gastroenterostomy, that is, a new opening was made in the stomach in the bottom portion, also an opening was made in the small intestine, and these two openings were sewed together so that food passes through the new opening instead of through the pylorus. That was done because examination showed that the pylorus was partially obstructed by a cancerous condition which retained the food in the stomach longer than the normal period. Later examinations seem to show that the operation had been a success. It was expected that the result of the operation would remove the cause of vomiting and pain. The only explanation the attending surgeons gave as to why that result did not follow is that his pains and vomiting are now due to Ms nervous condition.
Appellee testified that he now eats six or seven times a day, taking milk, soft cooked eggs, soft cereals, fruit juices, soft bread and graham crackers; that he vomits after eating each meal, except the one that he takes at midnight in bed, which he began taking after the operation, and with very few exceptions that meal stays down.
In November, 1928, appellee tried selling automobiles as a business and sold cars to all of Ms brothers and neighbors. Ho quit selling in the spring of 1929. He would be home of nights. He attributes quitting to a fear that he might vomit when he had a customer. He was away from Utah during the winter of 1927 and 1928. It may bo inferred though not specifically stated, that he was then doing missionary work by making calls and holding conversations. lie said it was embarrassing because he could not eat a meal with the families he visited, whieh would render Mm sick in their1 homes. Several times while so engaged he was laid up for a day or so with vomiting, pains and burning. He was first counselor to the bishop of Ms church and does some work among the people. He attends religious meetings when he can.
Appellee has directed the work on Ms farm, what crops to put in and arranges for selling them after harvesting. He carries a hank account in his own name which reflects receipts from farm and dairy operations. He doesn’t sell hay but figures the amount to raise to carry Ms own stock and puts the remaining land in grain and sugar beets. His wife, whom he married a few months after discharge, had $2,250 which she turned over to him, and it was credited to his account in the bank. She had four cows, and they and their increase were added to the dairy herd.
Appellee’s wife testified that she first noticed him vomit about a month after their marriage; that during the first three or four years it occurred once or twice a week; that now it occurs after every meal; that Ms first work was plowing the beets, and he got so sick he had to, get off! the plow and vomit; that sometimes he would milk one cow and have to go to the house; that he did a little light work in 1920; that he couldn’t stand the noise of mowing, he would go to pieces on thé mower and come home sick. He hasn’t mowed as long as a day since 1920'. He would plow part of the forenoon in seeding time and have to quit. ■■ Sometimes he would cultivate the beets- 'half a day. His midnight meals stay down as a rule, but not the others. In 1920 he planned the work in putting up the. hay. He would at times watch what was being done.. At times he would pitch hay for a while. At the planting season he would start to do something and be unable to finish. Since 1919 he has never been able to work a whole day, nor more than one-third-of the time including light work. He would start a cultivator, help' to regulate it,, and ^he-hired man would do the work. He did no,t work three or four days in a row, "except on'rare occasions. When he first came home as the years went on lie would work three .or four days at .a time, but not on hard work. It never happened that he worked with a pick and shovel on ditches for four days in a row ten hours a day. The ditch work on his farm is done by him in driving his team occasionally. '
It seems clear appellee’s pains and vomiting were not frequent for three or four years after his discharge, that his persistence in attempting to do hard labor brought on those attacks, and they have constantly grown more frequent.
The physicians and surgeons who testified for each of the parties were in agreement that appellee had ulcers of the stomach, one for appellee that he still has it. But the court in its instructions said to the jury that inasmuch as the medical men! who had testified all agreed that sueh a disease is curable, it was not permanent jin Character:
“The ultimate' question for your determination in this case is: was the plaintiff on the 31st day of March,' 1920, physically able with reasonable continuity to follow a substantially gainful occupation for which he was fitted, without serious danger to his life or health? And concretely the question presented by the evidence in this ease is this: Has as a matter -of fact the plaintiff been afflicted with these spells of vomiting and weakness as testified to by him and -his several witnesses, and if so have such spells of vomiting and weakness rendered it impossible for him to continuously engage in his occupation as a farmer, within the meaning of this rule? * * *
“If these symptoms and conditions arise from stomach ulcer he would not be entitled to recover because the testimony of the doctors is that stomach ulcer is curable. But if it arises from conditions which surrounded him during his service'in the army and was occasioned by the stress and exposure which he endured as a soldier in the army by affecting him physically as respects his stomach itself or otherwise as respects his nervous system which sympathetically controlled that organ, and it may be reasonably expeeted as a result of sueh exposures and surroundings that it will continue during the balance of his life and it has rendered him totally disabled within the rule, then he would be entitled to recover whether he had ulcer or whether he did not have ulcer.”
No exceptions were taken to the court’s instructions, and we think they are not subject to criticism insofar as the court went; but we are further of the opinion that an issue of fact vital to the rights of the parties arose on- the proof demanding the guidance of the court. It is true that appellant’s counsel brings the case here only on the refusal of the court to instruct a verdict in its favor at the close of all the evidence, to which action exception was saved. Nevertheless, we are not precluded from consideration of an omission of the court in failing to declare the law on an issue that goes to the very right of the parties, though not called to the court’s attention at the time.
In another case of this kind (United States v. Steadman, 73 F.(2d) 706, opinion filed this day) we had occasion to say:
“Neither expressly nor impliedly is self-inflicted disability covered by the contract sued on, and negligent disregard of one’s conduct with knowledge that it may be harmful- to him puts him in no better position.”
As said supra, the facts in this case seem to bring appellee within that principle. Instead of refraining he persisted in his attempts to do hard labor with knowledge that they would aggravate his ailment, thus rendering them less yielding to treatment and cure. The jury should have been instructed that if they so believed he could not recover.
Physicians and surgeons testified for appellee that in their opinion appellee was totally and permanently disabled on March 31, 1920, and for appellant that he was not. This was the ultimate issue for determination by the jury. It was incompetent testimony. We refer to our discussion of sueh testimony in the Steadman Case as applicable here. It was in effect leaving to the witness the right to tell the jury how it should decide the case. Miller v. United States (C. C. A.) 71 F.(2d) 361. It was not objected to by either side, but in passing on the motion £or an instructed verdict we think it is our duty to disregard such testimony, and in a close case, as here, it was clearly prejudicial.
For the reasons stated, reversed and remanded.
BRATTON, Circuit Judge