January 16, 1935.
Appeal from the District Court of the United States for the Southern District of West Virginia, at Huntington.
Action by Charles A. Carper against the United States of America. From a judgment for plaintiff, defendant appeals.
Before PARKER and SOPER, Circuit Judges, and WEBB, District Judge.
C.L. Dawson, Atty., Department of Justice, of Washington, D.C. (George I. Neal, U.S. Atty., and L.R. Via, Asst. U.S. Atty., both of Huntington, W. Va., Will G. Beardslee, Director, Bureau of War Risk Litigation, of Washington, D.C., Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and Young M. Smith, Atty., Department of Justice, of Washington, D.C., on the brief), for the United States.
Fred M. Stambaugh, of Charleston, W. Va. (Lively, Lively Stambaugh, of Charleston, W. Va., on the brief), for appellee.
This is an appeal in a war risk insurance case. The premium paid on the policy continued the insurance in force to December 31, 1918; and the only question which we need consider is whether there was substantial evidence that at that time the insured was totally and permanently disabled within the meaning of the policy. We think that this question must be answered in the negative. The suit was not filed until June, 1932, and the insured was then suffering from grand mal epilepsy, and there was evidence to warrant the conclusion that he was suffering from the same disease at the time of the lapse of the policy. There is no evidence, however, that at that time the disease had reached such stage as to constitute total and permanent disability. On the contrary, there was uncontradicted evidence that insured did work extending over a period of several years, and earned wages in a very substantial amount. Under such circumstances, verdict should have been directed for the government. Lumbra v. U.S., 290 U.S. 551, 54 S. Ct. 272, 78 L. Ed. 492; U.S. v. Legg (C.C.A. 4th) 70 F.2d 106. The judgment appealed from will be reversed.