Acy Thomas BOTTS, Appellant, v. UNITED STATES of America, Appellee

Acy Thomas BOTTS, Appellant, v. UNITED STATES of America, Appellee. No. 3449. Circuit Court of Appeals, Fourth Circuit. June 15, 1933. C. A. Mays, of Greenwood, S. C. (Mays & Featherstone and Douglas Featherstone, all of Greenwood, S. C., on the brief), for appellant. Joseph A. Tolbert, U. S. Atty., of Green-ville, S. C. (Davis G. Arnold and Wilbur C. Pickett, both of Washington, D. C., Attys., Veterans’ Administration, on the brief), for the United States. Before PARKER, ÑORTHCOTT, and SOPER, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. This is an appeal in a war risk insurance ease. Plaintiff’s policy lapsed for nonpayment of premium on March 3, 1919. About ten years later he was found to be suffering from active tuberculosis in an advanced stage, and the government admits that at that time he was totally and permanently disabled. The government denies, however, that he was totally or permanently disabled at the time of the lapse of the policy. The trial judge directed a verdict for the government, and a careful study of the record convinces us that this action was correct. Taken in the light most favorable to plaintiff, the evidence establishes no more than that at the time of the lapse of the policy'plaintiff may have had incipient tuberculosis. It is entirely insufficient to show that at that time the disease had reached such stage as to constitute total and permanent disability within the meaning of the policy. United States v. Diehl (C. C. A. 4th) 62 F.(2d) 343; United States v. Stack (C. C. A. 4th) 62 F.(2d) 1056; Eggen v. U. S. (C. C. A. 8th) 58 F.(2d) 616. The judgment of the court below will be affirmed. Affirmed.