Opinion
No. 4446.
June 24, 1939.
Appeal from the District Court of the United States for the Western District of North Carolina, at Asheville; Edwin Yates Webb, Judge.
Action on a war risk policy by Alfred K. Queen against United States of America. Judgment for defendant, and plaintiff appeals.
Affirmed.
Robert Lee Smith, of Asheville, N.C. (Walter L. Pfaff, of Asheville, N.C., on the brief), for appellant.
Young M. Smith, Atty., Department of Justice, of Washington, D.C. (Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D.C., Marcus Erwin, U.S. Atty., of Asheville, N.C., W.R. Francis, Asst. U.S. Atty., of Waynesville, N.C., and Fendall Marbury, Atty., Department of Justice, of Washington, D.C., on the brief), for the United States.
Before PARKER and NORTHCOTT, Circuit Judges, and CHESNUT, District Judge.
This is an appeal from a judgment in favor of the United States on a war risk insurance contract. The only question of any importance raised by the appeal is whether there was sufficient evidence to take the case to the jury on the question of total and permanent disability on August 6, 1937. The evidence showed that at that time the insured was suffering with arthritis, that this resulted in partial disability and that such disability was of a permanent character. It did not show, however, that he was totally disabled. It appeared on the contrary that he was successfully managing a small farm, and the opinion of physicians whom he introduced was that, while unable to perform any farm work requiring sustained physical effort, he was able to engage in work that did not require this. Under such circumstances, the verdict was properly directed.
Motion was made to dismiss the appeal because not properly taken within the time allowed by statute. Interesting and close questions are raised by this motion; but we need not decide them, as we are of opinion that the judgment appealed from was clearly right on the merits and the practical effect of an affirmance is the same as dismissal of the appeal.
Affirmed.