Klever

This is an appeal by the United States from a judgment entered upon a verdict for the plaintiff in an action brought to recover payments alleged to be due under a war risk insurance contract, insuring plaintiff against total and permanent disability.

Plaintiff’s service in the armed forces of the United States, the execution of the policy and its continuation in force by payment of premiums until May 30, 1919, are admitted. The sole question on this appeal, raised by the denial of the government’s motion for directed verdict, is whether there is sufficient evidence to warrant the jury in finding that plaintiff was totally and permanently disabled on or before May 30, 1919.

In determining this question we take as true all facts which plaintiff’s evidence tends to establish and draw in his favor all inferences fairly deducible from such facts. Lumbra v. U. S., 290 U.S. 551, 553 , 54 S.Ct. 272, 273 , 78 L.Ed. 492 . It is incumbent upon plaintiff to show that before his policy lapsed he became unable to follow continually any substantial employment and that the condition was reasonably certain to last throughout his lifetime. The fact that he performed some work since May, 1919, is…