United States v. Tarrer, 7610.

• Decision Date: 25 April 1935
• Docket Number: No. 7610.,7610.
• Citation: 77 F.2d 423
• Parties: UNITED STATES v. TARRER.
• Court: U.S. Court of Appeals — Fifth Circuit

77 F.2d 423 (1935)

UNITED STATES v. TARRER.

No. 7610.

Circuit Court of Appeals, Fifth Circuit.

April 25, 1935.

J. Gregory Bruce, Atty., Department of Justice, of Washington, D. C., and T. Hoyt Davis, U. S. Atty., and H. Grady Rawls, Asst. U. S. Atty., both of Macon, Ga., for the United States.

Alexis A. Marshall and Gilbert C. Robinson, both of Montezuma, Ga., for appellee.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

BRYAN, Circuit Judge.

Appellee, as beneficiary under a war risk term insurance policy, sued and recovered judgment based on the total and permanent disability of the insured during the life of the policy. Errors assigned on the overruling of appellant's demurrer to the petition, and the denial of its motion for a directed verdict, present the questions (1) whether appellee's claim as beneficiary was barred by 38 USCA § 445, and whether there was sufficient proof that the insured was suffering from total and permanent disability while the insurance was in force.

The policy lapsed on July 1, 1919, for nonpayment of premiums. The insured died in February, 1930, without ever having made a claim under the policy; but his widow, as beneficiary, brought suit on December 4, 1931, to collect the installments that had accrued after his death, alleging in her petition that she filed her claim for insurance benefits on June 27, 1931; that notice of denial was mailed from Washington on November 16, 1931, and reached her post office address on the 20th, but was not received by her until November 29 because of her absence from home.

The insured was discharged from the army in May, 1919. During his service he was wounded in battle, and because of his wound his left leg was amputated. Appellee contends also that at the time of his discharge and before the policy lapsed the insured was suffering from tuberculosis and war neurosis. That contention rests almost entirely on the testimony of Dr. Homer Lightner, who gave it as his opinion that the insured in May, 1919, was suffering from incipient tuberculosis complicated with war neurosis. That witness did not regularly attend the insured; nor so far as appears did any other physician until March, 1924, when Dr. Lester Lightner said he found symptoms of tuberculosis. Dr. West, a specialist in tuberculosis at a veterans' hospital, called as a witness for appellant, testified that he made a physical examination of the insured in 1922 and found no evidence of tuberculosis or war neurosis. The insured was married in 1921. He took out life insurance with the New York Life Insurance Company in 1922, when he stated in his application that he had never consulted a physician for or suffered from any disease of the lungs, and the examining physician also testified that he found no evidence of past or present disease of the lungs or of neurosis. Upon his discharge from the army, the insured took vocational training for the purpose of equipping himself to become an automobile mechanic; his father bought a garage and put him in charge of it, and he acted as manager of that business until about a month before his death in 1930. In 1924, in an application to the Veterans' Bureau for further training as an electrician in connection with his automobile business, he stated that his annual income was and had been $900 a year.

In our opinion appellee's suit was barred by section 19 of the World War Veterans' Act 1924, as amended by Act approved July 3, 1930, § 4 (38 USCA § 445).¹ That amendment would have barred the right of the insured, if he had been living, to sue after November 26, 1931. This...