Opinion
No. 3339.
December 2, 1932.
Appeal from the District Court of the United States for the Eastern District of North Carolina, at Fayettville; Isaac M. Meekins, Judge.
Action by J.L. Jones against the United States. Judgment for plaintiff, and defendant appeals.
Reversed.
W.H. Fisher, U.S. Atty., of Clinton, N.C. (J.D. De Ramus, Chief Atty., and T.P. Regan, Atty., Veterans' Administration, both of Charlotte, N.C., on the brief), for the United States.
W.E. Lynch, of Rowland, N.C., and H. Woodward Winburn, of Greensboro, N.C. (R.H. McNeill, of Washington, D.C., and T.A. McNeill, of Lumberton, N.C., on the brief), for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and PAUL, District Judge.
This is an appeal from a judgment in favor of plaintiff on a policy of war risk insurance. The policy was continued in force by payment of premiums until August 31, 1919. The only question we need consider is whether the evidence was sufficient to establish total and permanent disability on the part of the insured at that time. We do not think that it was.
There is evidence tending to show that plaintiff was suffering at the time of the lapse of the policy with chronic bronchial asthma, and that he had a fractured coccyx bone; but the fractured coccyx bone did not constitute disability of either a total or permanent nature, and, while the asthma was chronic, the disability resulting from it was not total. About a month before the policy lapsed, plaintiff went to work as an automobile mechanic in a garage at Lumberton, N.C., where he worked for a year and a half at wages of from $30 to $35 per week. When the firm for which he was working discontinued business, he went to York, S.C., and opened up a repair shop of his own, which he operated for about a year. Following this, he worked about a year for the Willys Knight Company at wages of $20 per week. He then worked for about ten months for Scotland county at a wage of $35 per week, repairing trucks for the county highway commission. There can be no question that between 1919 and 1924 he was working with substantial regularity at good wages; and, in view of this, it cannot be said that in 1919 he was totally and permanently disabled. U.S. v. Diehl (C.C.A. 4th) 62 F.2d 343 (this day decided); U.S. v. Harrison (C.C.A. 4th) 49 F.2d 227; Nicolay v. U.S. (C.C.A.) 51 F.2d 170; U.S. v. McGill (C.C.A.) 56 F.2d 522. The judgment below will be reversed.
Reversed.