Opinion
No. 9537.
March 20, 1933.
Appeal from the District Court of the United States for the Southern District of Iowa; Charles A. Dewey, Judge.
Action by Ray Walter Hodson against United States. Judgment for plaintiff, and defendant appeals.
Reversed.
Frank F. Wilson, Asst. U.S. Atty., of Mount Ayr, Iowa (R.W. Colflesh, U.S. Atty., and Ray C. Fountain, Asst. U.S. Atty., both of Des Moines, Iowa, on the brief), for the United States.
Volney Diltz, of Des Moines, Iowa, for appellee.
Before KENYON and SANBORN, Circuit Judges, and REEVES, District Judge.
This is an appeal from a judgment entered upon the verdict of a jury in an action upon a policy of War Risk Insurance. The appellant assigns as error the denial of its motion for a directed verdict.
The record shows that the appellee was in the service of the United States, as a soldier, from December 15, 1917, to May 6, 1918; that he had a policy of War Risk Insurance; that he was discharged on May 6, 1918, upon a certificate of disability stating that he had pulmonary tuberculosis and hypothyroidism; that within thirty days after his return to his home he was employed at his pre-war occupation as a molder; that for a number of years thereafter he was gainfully employed and worked with reasonable regularity. At the time of trial he had active pulmonary tuberculosis in a moderate degree. There is no medical testimony that the appellee at the time he was discharged was, or at any time since has been, totally and permanently disabled.
This case is clearly ruled by Nicolay v. United States (C.C.A. 10) 51 F.2d 170; Hirt v. United States (C.C.A. 10) 56 F.2d 80; Eggen v. United States (C.C.A. 8) 58 F.2d 616; United States v. Peters (C.C.A. 8) 62 F.2d 977.
The judgment is reversed.