UNITED STATES v. CLINE

UNITED STATES v. CLINE. No. 3346. Circuit Court of Appeals, Fourth Circuit. Dec. 2, 1932. David D. Ashworth, U. S. Atty., of Beckley, W. Va., and Okey P. Keadle, Asst. U. S. Atty., of Huntington, W. Ya. (Harry J. Capehhrt, Asst. U. S. Atty., of Welch, W. Ya., on the brief), for the United States. Kyle D. Harper and Harry M. Kilgore, both of Beckley,' W. Ya., for appellee. Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. This is an appeal by the government in a war risk insurance case. The only question is whether verdict should have been directed for failure of plaintiff to establish total and permanent disability prior to the lapse of the policy, which occurred June 30, 1919. There was evidence that at that time plaintiff had chronic bronchitis and that he has suffered from same ever since. On the other hand, the evidence is conclusive that he was not totally disabled as a result of this disease. From June, 1919, to July, 1920, he worked regularly for the Summit Coal Company and received wages to the amount of $1,163.75. In July, 1920, he lost his hand as a result of an explosion in the coal mine of that company, but notwithstanding this loss, has been able to do substantial work at various occupations. According to his own evidence, he worked a total of between eight and nine years between 1919 and 1930. From July, 1929, to May, 1930, he carried the mail, and this employment was terminated only because his employer lost the contract for carrying it. There was no evidence whatever of total or permanent disability on June 30, 1919; and, on the principles laid down in U. S. v. Harrison (C. C. A.) 49 F.(2d) 227, and U. S. v. Diehl (C. C. A.) 62 F.(2d) 343, this day decided, verdict should have been directed for the government. Reversed.