The appellant, hereinafter called the plaintiff, was inducted into the military services of the United Stаtes on the 19th day of September, 1917. During the service, in November, 1917, he was confined in a hospital and on thе 25th day of January, 1918, he was discharged for physical disаbility. His war risk insurance policy lapsed on the 28th day оf February, 1918, for nonpayment of premiums.
In April, 1932, plaintiff instituted this action in the District Court of the United States for the Western District of Virginia, alleging total and permanent disаbility during the life of the war risk term insurance policy. Upon the completion of the plaintiff’s testimony at the trial of the case the appellee, hеreinafter called the defendant, moved for а directed verdict, which motion was granted by the court, and judgment entered in accordance therewith, from which action this appeal was brought.
“The burden of proof rests upon the plaintiff * * ® ' to establish that he became totally and permanently disabled before the policy lapsed for the nonpayment of premiums.” United States v. Diehl (C. C. A.)
“And in the absencе of clear and satisfactory evidence explaining, excusing or justifying it, petitioner’s long delay before bringing suit is to be taken as strong evidence that he was not totally and permanently disabled before thе policy lapsed.” Lumbra v. United States,
“ * * * for a cоurt to find from the evidence here presented that prior to March 30, 1928, plaintiff was totally and permanently disabled would be a 'mere guess, unsupported by any substantial evidence.’ Blair v. United States (C. C. A.)
The plaintiff was given hospitalization by the government in the years 1918 аnd 1919 and there were numerous examinations of the plaintiff by doctors both during the time he was in the hospital аnd in the years following, some fourteen or fifteen еxaminations in all, and without exception these examinations show that while the plaintiff had an incipiеnt case of tuberculosis it was early arrested and did not recur. In October, 1919, some time after the dischаrge of the plaintiff from the hospital, he wrote thе following to the bureau of war risk insurance:
“My physical condition is very good at the present time. But I am not at work, as I am waiting on the Federal Board to provide training for me.
“My earnings are nothing as you seе per letter above. I am entitled to compensation, the same as the past.”
This statement оf the plaintiff shows that he did not consider himself permanently and totally disabled at that time.
An examination оf the record shows a total absence of substantial proof of plaintiff’s total and permanent disability during the life of the policy and the judgment of the court below is accordingly affirmed.