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UNITED STATES v. McRAE.

No. 3801.

Circuit Court of Appeals, Fourth Circuit.

April 12, 1935.

S. Henry Edmunds, Jr., Asst. U. S. Atty., of Charleston, S. C., and Thomas E. Walsh, Atty., Department of Justice, of Washington, D. C. (Claud N. Sapp, U. S. Atty., of Columbia, S. C., Will G. Beardslee, Director, Bureau of War Risk Litigation, of Washington, D. C., and Wilbur C. Pickett and Fendall Marbury, Sp. Assts. to Atty. Gen., on the brief), for the United States.

R. K. Wise, of Columbia, S. C. (J. E. Dudley, Jr., of Bennettsville, S. C., on the brief), for appellee.

*89Before PARKER, NORTHCOTT/ and SOPER, Circuit Judges.

PER CURIAM.

This is an appeal in a war risk insurance case. The policy expired on July 1, 1919, and insured died as the result of a gunshot wound in August, 1920. There is evidence from which the conclusion can be drawn that insured was suffering from tuberculosis while his policy was in force; hut it is not established that the disease at that time had reached such a stage as to constitute total and permanent disability. Plaintiff relies on the expert testimony of two physicians; but neither of these ever saw the insured, and their testimony is entirely, too speculative to constitute the basis of a verdict. There was testimony that, between July, 1919, and August, 1920, insured had night sweats, spitting of blood, hoarseness, and other symptoms of tuberculosis; but there is no evidence that the disease had reached such stage pri- or to July 1, 1919, that with proper treatment insured might not have recovered from it. A verdict must be based on evidence, not on speculation or conjecture.

Reversed.

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