US SUPREME COURT DECISIONS

1. In an action on a lapsed war risk insurance policy insuring only against "total permanent disability," the evidence established that, since a time prior to the lapse, the insured, as the result of chronic and incurable disorders, was partially disabled, and at times and during periods of substantial duration, totally disabled, but that, in the year next following the lapse, he was officially examined and found fit for service as an air pilot, and that, during the larger part of more than eight years between the lapse and the commencement of his suit, he was able to work, and actually did so, and earned substantial compensation.

Held:

(1) That, in view of these facts, his testimony that, under stress of need, he worked when not able cannot be given weight, for he is not entitled to recover unless he became totally disabled before the lapse and thereafter remained in that condition. P. 293 U. S. 505.

(2) Since he was not totally disabled when found fit for air service and while performing work admittedly done, total disability occurring while the policy was in force was temporary, and not permanent. P. 293 U. S. 506.

(3) The fact that, notwithstanding his need of money for the support of his family and himself, he failed for nearly nine years to sue for the insurance money now claimed strongly suggests that he had not suffered total permanent disability covered by the policy. Lumbra v. United States, 290 U. S. 551, 290 U. S. 560. And that suggestion is emphasized by the fact that he procured examination for reinstatement of his insurance. Id.

(4) The opinions of medical witnesses that work impaired his health and tended to shorten his life had no substantial bearing chanrobles.com-red

Page 293 U. S. 499

upon the question whether total disability while the policy was in force continued during the subsequent years. As against the facts directly and conclusively established, this opinion evidence furnishes no basis for opposing inferences. P. 293 U. S. 506.

(5) Medical opinions that he became totally and permanently disabled before his policy lapsed are without weight, it being clear that the experts failed to give proper consideration to his fitness for naval air service or to the work he performed, and misinterpreted "total permanent disability" as used in the policy and statute authorizing the insurance. Id.

(6) The Government's motion for a directed verdict on the evidence should have been granted. P. 293 U. S. 505.

2. An expert ought not be allowed to express an opinion upon the ultimate issue of fact to be decided by the jury. P. 293 U. S. 506.

68 F.2d 656 reversed.

Certiorari to review the affirmance of a judgment against the United States in an action on a war risk insurance policy.