Frank Murphy

“ Certainly there is nothing to suggest that the Kansas City Court of Appeals now would conclude that the evidence is insufficient after it has held that the same evidence presented a question for the jury. And while the concept of total disability is inseparable from the facts to which it is applied, Heald v. Aetna Life Insurance Co., 340 Mo. 1143, 104 S.W.2d 379, indicates that the Missouri Supreme Court likewise would conclude that a finding to total disability here is supported by the evidence. ”

“ Furthermore, the test for determining total disability approved in the Heald case was employed in the first and followed in the second of the appeals to which we have referred. 90 S.W.2d 784, 793, 795; 232 Mo.App. 1048, 114 S.W.2d 167, 171, 172. It has been employed consistently since the Heald case was decided. Eden v. Metropolitan Life Ins. Co., Mo.App., 138 S.W.2d 745; Comfort v. Travelers Insurance Co., Mo.App., 131 S.W.2d 734; Rogers v. Metropolitan Life Ins. ”

“ Fidelity Union Trust Co. et al. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109; Six Companies of California et al. v. Joint Highway District, 311 U.S. 180, 61 S.Ct. 186, 85 L.Ed. 114. In particular this is true where the intermediate state court has determined the precise question in issue in an earlier suit between the same parties, and the highest court of the state has refused review. West v. ”