GILPIN v. UNITED STATES

GILPIN v. UNITED STATES. No. 3502. Circuit Court of Appeals, Fourth Circuit. Oct. 3, 1933. James Harold Martin, of Princeton, W. Va. (C. B. Martin, of Princeton, W. Va., on the brief), for appellant. David D. Ashworth, U. S. Atty, of Beckley, W. Va. (Okey P. Keadle, Asst. U. S. Atty., of Huntington, W. Va., and Thomas E. Walsh, Chief Atty., U. S. Veterans’ Administration, of Washington, D. C., on the * brief), for the United States. Before NORTHCOTT and SOPER, Circuit Judges, and GLENN, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. This is a suit brought in the District Court' of the United States for the Southern District of West Virginia, by the appellant against the United States, on a war risk insurance policy. The policy expired October 31,1919. It is claimed on behalf of appellant that at the time of the lapse of the policy he was afflicted with encephalitis or sleeping sickness. The case was tried at Bluefield in January, 1933, and, after the introduction of evidence on part of boj;h the plaintiff and defendant, upon motion the court directed a verdict for the defendant, upon which verdict judgment was entered. From this action of the court helow, this appeal was brought. The evidence in the ease shows that long after the policy expired the defendant was continuously engaged in working, and that for a period of more than four years, after the expiration of the year 1919, he earned an average of more than $100 per month. Under the decisions of this court [United States v. Diehl, 62 F.(2d) 343; United States v. Harrison, 49 F.(2d) 227], this evidence of a working record conclusively proves that the appellant was not permanently and totally disabled, within the meaning of the policy, on October 31, 1919. The judgment of the court below is accordingly affirmed. '