Opinion
No. 3732.
November 19, 1934.
Appeal from the District Court of the United States for the Eastern District of North Carolina, at Fayetteville.
Action by McDuffie McRae, administrator of the estate of Angus G. McRae, deceased, and another against the United States. Judgment for plaintiffs, and defendant appeals.
Affirmed.
Keith L. Seegmiller, Atty., Department of Justice (J.O. Carr, U.S. Atty., of Wilmington, N.C., and Will G. Beardslee, Director, Bureau of War Risk Litigation, and Armistead L. Boothe, Atty., Department of Justice, both of Washington, D.C., on the brief), for the United States.
T.A. McNeill, of Lumberton, N.C. (W.E. Lynch, of Rowland, N.C., on the brief), for appellees.
Before PARKER and SOPER, Circuit Judges, and WATKINS, District Judge.
This is a war risk insurance case, and the only question raised by the appeal is as to the sufficiency of the evidence to establish total and permanent disability while the policy was in force. Insured was discharged from the army suffering from arthritis in 1919, and the disease grew steadily worse until it caused his death in 1933. It appears that while he was in the army he was almost constantly in the hospital, being afflicted at various times with ptomaine poisoning, mumps, epididymitis, and some trouble with his back. Shortly after his discharge he was found to have tuberculosis in addition to his arthritic condition. From 1924 until his death he was almost continuously in government hospitals receiving treatment. The testimony indicating total and permanent disability is not contradicted by any substantial work record. On the contrary, the evidence shows that he in good faith tried to work, but on account of his physical condition was unable to do so with any reasonable regularity. Under the principles laid down in Garrison v. U.S. (C.C.A. 4th) 62 F.2d 41, we think the evidence was sufficient to take the case to the jury.
Affirmed.