Opinion
No. 4467.
June 24, 1939.
Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Frank K. Myers, Judge.
Action by Alexander F. Rodgers against the United States of America on a policy of converted war risk insurance. Judgment for the defendant, and the plaintiff appeals.
Judgment affirmed.
James L. Platt, of Kingstree, S.C., for appellant.
Young M. Smith, of Washington, D.C., Atty., Department of Justice (Claud N. Sapp, U.S. Atty., of Columbia, S.C., Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D.C., and Wilbur C. Pickett, Sp. Asst. to the Atty. Gen., on the brief), for the United States.
Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge.
This is an appeal from a judgment in favor of the United States on a policy of converted war risk insurance. The only question presented by the appeal is whether or not there was sufficient evidence to take the case to the jury on the question of total and permanent disability at the time of the lapse of the policy for nonpayment of premiums in 1932. There was evidence that insured at the time of the trial was suffering from myocarditis or angina pectoris, and there is evidence from which it may be fairly inferred that the inception of this disease antedated the lapse of the policy. There is no evidence, however, to justify the conclusion that, at that time, it had reached such stage as to constitute total and permanent disability within the meaning of the policy; and verdict was properly directed for the government.
Motion was made to dismiss the appeal on the ground that appeal was not properly taken within the time allowed by statute. As we are of opinion, however, that the judgment appealed from should be affirmed on the merits, we need not consider the questions raised by the motion, as the result would be the same to the parties whether we grant it or not.
Affirmed.