In this case there was clearly disability total in character while the policy was in force. The real question is whether before the policy lapsed the disability was permanent; i. e., was the disability “reasonably certain to be permanent during lifetime.” United States v. McCreary (C.C.A.) 61 F.(2d) 804, 808. “The burden of proof is on the plaintiff; 'it is not carried by leaving the matter in the realm of speculation.’” Falbo v. United States (C.C.A.) 64 F.(2d) 948, 949.
It appears to be judicially settled that tuberculosis in its early stages while it then creates a total disability does not create a permanent one. In other words, incipient tuberculosis is regarded as an acute illness in which the prognosis is favorable. This was the view taken in the Falbo Case above referred to which was affirmed by the Supreme Court, 290 U.S. 618, 54 S.Ct. 100, 78 L.Ed. 540, and in a number of other cases. In the Falbo Case the policy lapsed in May, 1919. The court said, “While, on this evidence, a finding of total disability in May, 1919, and of permanent disability at a much later period, would be justified, we concur in the judgment of the District Judge that it fails to show a condition of permanent disability in May, 1919, a disability then ‘reasonably certain to be permanent during lifetime.’ ” (Italics supplied.) Mack, J. 64 F.(2d) 948, 949. Some of the questions put by the trial judge in this case to the plaintiff’s witness appear to have been suggested by the questions in the Falbo Case. The evidence here on this point of permanence is certainly no stronger for the plaintiff than it was in the Falbo Case. As the Falbo Case was affirmed, I suppose we are clearly bound by it. I am unable to distinguish it. The general character of tuberculosis as a disease is a fact depending on medical testimony. United States v. Clapp, 63 F.(2d) 793, 795 (C.C.A.2). Opinions that the insured became permanently disabled before the policy lapsed “are without weight.” United States v. Spaulding, 293 U.S. 498, 506, 55 S.Ct. 273, 79 L.Ed. 617.
Undoubtedly, the presumptively curable character of tuberculosis may in any given case be overthrown by evidence that in that case the disease refused to yield to treatment. But the evidence in this case does not, I think, warrant such a finding. The plaintiff’s doctor testified: “I have never heard that he was properly treated. Ques. But if you will assume that he had been properly treated? Let us assume in a hypothetical case in which the symptoms would be exactly what they are here, assume that that man had taken proper treatment. Ans. Well, it is possible and probable. He has about a fifty-fifty chance to get well.” Compare this evidence in the case before us with the evidence in the Falbo Case: “Ques. Is it reasonably likely he would not have (recovered) ? Ans. Well, he may have recovered and he might not have.” Both cases dealt with consumption.
In the latest expressions from the Supreme Court it has shown no disposition to relax the rule in the Lumbra (290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492) and Falbo Cases that the plaintiff must introduce evidence that the disability was not only total but also permanent before the policy lapsed. See United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617; Miller v. United States, 294 U.S. 435, 55 S.Ct. 440, 79 L.Ed. 977.