United States v. Harrison, 3103.

• Decision Date: 13 April 1931
• Docket Number: No. 3103.,3103.
• Citation: 49 F.2d 227
• Parties: UNITED STATES v. HARRISON et al.
• Court: U.S. Court of Appeals — Fourth Circuit

49 F.2d 227 (1931)

UNITED STATES v. HARRISON et al.

No. 3103.

Circuit Court of Appeals, Fourth Circuit.

April 13, 1931.

Bayless L. Guffy, Atty. U. S. Veterans' Bureau, of Washington, D. C. (James Damron, U. S. Atty., and Okey Paul Keadle and David F. Sheets, Assistant U. S. Attys., all of Huntington, W. Va., and William Wolff Smith, Gen. Counsel, U. S. Veterans' Bureau, of Washington, D. C., on the brief), for the United States.

H. D. Rollins, of Charleston, W. Va., for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and GLENN, District Judge.

PARKER, Circuit Judge.

This is an action upon a war risk insurance policy. The insured was honorably discharged from the navy December 30, 1918. He paid no premiums on his policy after his discharge and the grace period expired February 1, 1919. He died of tuberculosis February 6, 1926. The suit was prosecuted by his administrator and the beneficiaries under the policy on the theory that insured was totally and permanently disabled prior to the expiration of the grace period, and that consequently the insurance never lapsed. There was a verdict and judgment for the plaintiffs, and the government has appealed. The principal exception in the case relates to the sufficiency of the evidence to sustain the verdict.

We do not think that there was sufficient evidence of total and permanent disability to bring the case within the principles laid down by us in Carter v. U. S., 49 F.(2d) 221, this day decided. There was general testimony on the part of insured's father and one of his neighbors that his health was not good, that he was complaining, that he could not work much and had lung trouble; but the physician who treated him in his final illness testified that the tuberculosis of which he died was only of several months standing, and there is no evidence that he had this disease or any other disease resulting in total and permanent disability during the greater part of the seven years which intervened between the lapse of his policy and his death. On the other hand, his certificate of discharge from the navy recommended him for re-enlistment; and a physical examination made at the time of his employment at the Naval Ordnance Plant at South Charleston, W. Va., in the year 1919 showed that he had no "indication of disease or of derangement of functions of respiration" and that, although five pounds underweight, his "degree of robustness" was "good." The evidence is uncontradicted that he was employed at the ordnance...