FURBEE v. UNITED STATES

FURBEE v. UNITED STATES. No. 3670. Circuit Court of Appeals, Fourth Circuit. Oct. 11, 1934. John B. Wyatt, of Clarksburg, W. Ya. (Wyatt & Randolph, of Clarksburg, W. Ya., on the brief), for appellant. Howard L. Robinson, U. S. Atty., of Clarksburg, W. Ya., for the United States. Before NORTIICOTT and SOPER, Circuit Judges, and MYERS, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. 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 canso of disability was said lo he tuberculosis, from whicli 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 ease 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.