UNITED STATES v. GALLOWAY

UNITED STATES v. GALLOWAY. No. 3419. Circuit Court of Appeals, Fourth Circuit. Jan. 31, 1933. Joseph A. Tolbert, U. S. Atty., of Green-ville, S. C., and John M. George, of Richmond, Va., Atty., U. S. Veterans’ Administration (Davis G. Arnold, Wilbur C. Pickett, and Onan A. Hydrick, Attys., Veterans’ Administration, all of Washington, D. C., and J. C. Willcox, Atty., Veterans’ Administration, of Columbia, S. C., on the brief), for the United States. W. D. Workman and L. F. Simpson, Jr., both of Greenville, S. C., for appellee. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. This is an appeal in a war risk insurance case. Plaintiff"claimed to be totally and permanently disabled as a result of amoebic dysentery from which he was suffering at the time when his policy lapsed for nonpayment of premiums approximately thirty days after his discharge from the Army. We think that the evidence shows that plaintiff had the disease at the time of the lapse of the policy; but we do not think that it is sufficient to sustain the conclusion that he was totally and permanently disabled at that time. Not only is there no showing that plaintiff’s disease had then reached such a stage that it would not have yielded to treatment, but it appears also that when the government attempted to treat him in a hospital some years* later he refused to accept the treatment. As said in Eggen v. U. S. (C. C. A. 8th) 58 F.(2d) 616, 620: “An insured may not convert a total temporary disability existing before lapse into a total permanent disability by neglecting his condition after lapse, and the failure to take treatment may destroy whatever probative value death or permanency of disability occurring after lapse would otherwise have.” The government’s motion for a directed verdict should have been granted. U. S. v. Hairston (C. C. A. 8th) 55 F.(2d) 825; U. S. v. Diehl (C. C. A. 4th) 62 F.(2d) 343. The judgment appealed from will be reversed. Reversed.