Hainer

The government appeals from a judgment upon a war risk insurance policy based upon the alleged permanent and total disability of the plaintiff occurring on or before, and continuing after, July 31, 1919. The error assigned is the refusal of the trial .court to direct a verdict in favor of the government.

There was substantial evidence that at the tima of the trial, and as early as Oeto-ber 7, 1930, the plaintiff was suffering from severe bronchial asthma associated with tremendous difficulty in breathing, particularly on the slightest exercise. Dr. Staub testified, “He couldn’t have any more severe bronchitis and asthma than ho has and be able to walk about”; that walking thirty-five to forty feet from his reception room to the examining room “put his heart to pounding and shortness of breath.” The contention of the appellant is that there is no substantial evidence that this condition began before the policy lapsed on July 31, 1919. The expert witnesses who testified for the plaintiff stated that his condition was a progressive one. Dr. Rush, who examined the plaintiff in 1930 and testified on his behalf, stated, “The condition I found him in last week is a progressive…