UNITED STATES v. ELLIS

UNITED STATES v. ELLIS. No. 3365. Circuit Court of Appeals, Fourth Circuit. Dec. 2, 1932. Joseph A. Tolbert, U. S. Atty., of Green-ville, S. C. (Davis G. Arnold and Lawrence A. Lawlor, Attys., Veterans’ Administration, both of Washington, D. C., on the brief), for the United States. J. P. Richards, of Lancastei’, S. C., and James H. Glenn, of Chester, S. C., for appellee. Before PARKER and SOPER, Circuit Judges, and PAUL, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. This is an appeal by the government from a judgment in favor of the plaintiff in a war risk insurance ease. The only question presented is whether verdict should have been directed for the government for failure of plaintiff to show total and permanent disability during the life of the policy. We think that the government is right in its contention as to this matter. While the evidence shows an injury resulting in partial disability permanent in character, there is no evidence which would justify the conclusion that plaintiff has been totally disabled. He has been weakened as the result of an operation necessitated by a wound and suffers from a hernia; and his condition unquestionably prevents his doing heavy manual labor. He is able to engage in light work, however; and the evidence shows that following his discharge from the Army he has worked with reasonable regularity and has earned substantia] wages. In tho year following his discharge he applied for and was given vocational training by the government, studying at a business college and later taking a course in cotton grading1. In 1921 and 1922 be engaged in farming. In 1924 and 1925 be worked in a general store, earning approximately $60 per month. He operated a filling station from 1926 to 1932. Under the principles laid down in U. S. v. Harrison (C. C. A.) 49 F.(2d) 237, and U. S. v. Diehl (C. C. A.) 62 F.(2d) 343, this day decided, we think the government was clearly entitled to a directed verdict. Reversed.