Opinion
No. 3670.
October 11, 1934.
Appeal from the District Court of the United States for the Northern District of West Virginia, at Clarksburg. At Law.
Action by Grace Pearl Patton Furbee, in her own right and as executrix of the last will and testament of Okey H. Furbee, deceased, against the United States of America. From a judgment for defendant, plaintiff appeals.
Affirmed.
John B. Wyatt, of Clarksburg, W. Va. (Wyatt Randolph, of Clarksburg, W. Va., on the brief), for appellant.
Howard L. Robinson, U.S. Atty., of Clarksburg, W. Va., for the United States.
Before NORTHCOTT and SOPER, Circuit Judges, and MYERS, District Judge.
The plaintiff in the District Court sought to recover upon a war risk insurance policy, which lapsed for nonpayment of premiums on April 1, 1919, unless at that date the soldier was totally and permanently disabled. The suit was not brought until March 11, 1931. The cause of disability was said to be tuberculosis, from which disease the insured died on April 1, 1931. There was, however, no evidence tending to show that the insured was so afflicted with the disease on April 1, 1919. Indeed the first positive diagnosis of lung impairment was made in 1922, and even then there was nothing to show that the disease was incurable. Hence there is nothing to distinguish this case in principle from many others which have been considered by the courts. See Lumbra v. United States, 290 U.S. 551, 54 S. Ct. 272, 78 L. Ed. 492; United States v. Diehl (C.C.A.) 62 F.2d 343; Andrews v. United States (C.C.A.) 63 F.2d 184; Nicolay v. United States (C.C.A.) 51 F.2d 170; United States v. Sumner (C.C.A.) 69 F.2d 770.
The action of the District Court in directing a verdict for the defendant was unavoidable, and its judgment is therefore affirmed.