Middleton v. United States

204 F.2d 646, 1953 U.S. App. LEXIS 2481

Opinions

PER CURIAM.

This appeal, from the dismissal by the district court of an action brought by the father of a deceased insured service man as beneficiary in the certificate of National Service Life Insurance issued by the United States, has been duly considered.

Conceding that the authority of United States v. Patryas, 303 U.S. 341, 58 S.Ct. 551, 82 L.Ed. 883 [see also Van Pelt v. United States, 6 Cir., 134 F.2d 735], forces conclusive presumption that the insured was in sound mental and physical condition when he was inducted into the United States Army, we are of opinion that the complaint was properly dismissed on motion of the defendant below (now appellee) at the conclusion of the plaintiff’s evidence for the reason that the record shows that the insured was adjudged as restored to sanity at a hearing before the County Judge of Harlan County, Kentucky, after his dis-r charge from an Army Hospital on February 18, 1946; and that the assured was, there fore, not entitled to a waiver of premiums on account of the required showing of continuous total disability. Section 802(n), Title 38, U.S.C.A. The appellant, as beneficiary, had filed an application for waiver of premiums on August 13, 1947, which was denied by the Veterans Administration on May 10, 1950; and no premiums had been paid on the policy by the insured alter his discharge from the Army on November 18, 1942.

It is apparent, therefore, that the finding of the district judge that the evidence was insufficient to entitle appellant to waiver of premiums on account of total disability of the insured was not clearly erroneous, but was supported by substantial evidence.

The judgment of the district court is affirmed.