
    HOWARD v. UNITED STATES.
    No. 52.
    District Court, E. D. Tennessee.
    July 13, 1940.
    Adam B. Bowman, of Johnson City, Tenn., for plaintiff.
    David A. Turner, Atty., Department of Justice, of Washington, D. C., and W. E. Badgett, Asst. U. S. Atty., of Knoxville, Tenn., for defendant.
   TAYLOR, District Judge.

At the conclusion of the plaintiff’s evidence, the defendant moved for a directed verdict, and the motion was taken under advisement pending the introduction of defendant’s evidence. At the conclusion of all the evidence, the defendant renewed its original motion and again asked for peremptory instructions in its favor. The case was submitted to the jury with the right reserved to pass on the motions after opportunity to consider particularly the question of the effect of the absence of medical evidence as of the exact crucial date. The medical evidence related to examinations of a few weeks later than the date of administrative denial. I have had portions of the reporter’s notes read to refresh my recollection as to the facts, and have concluded that the case could not properly have been withdrawn from the jury because there is evidence of a substantial character, which if believed by the jury would require a verdict for the plaintiff. I think the court should permit a retrial of the case, the jury having disagreed at this hearing, and the motion under Rule 50(b), Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, will be denied. . .  