(dissenting).
I agree with the conclusion that there was a disagreement which authorized suit and vested jurisdiction in the District Court. However, I draw different conclusions from the facts in the record.
While in the Army the insured was sent to a hospital and the diagnosis showed that he was a tubercular suspect. Immediately after his discharge, he consulted a doctor and showed positive symptoms of tuberculosis. His work record is practically nil. He was a farm laborer by occupation, and the presumption may be indulged that he was incompetent to do any other class of work. He was given a job as farm hand by an old family friend, who testified that except for his friendship he would not have employed him. After that, he had another job as farm laborer, but he was unable to do a day’s work, and, as he had to sleep in the same room with the son of his employer, and as he was constantly coughing, he was discharged.
There was sufficient evidence before the jury to show that he could be classed as totally disabled from the time of his discharge when the policy was in force until his death about two years later in 1921. The conclusion that he was not totally and permanently disabled is apparently based *788on the presumption that a-11 cases of tuberculosis may become arrested and, as he did not seek competent medical advice, his early death resulted from his own neglect. The presumption is entirely too violent to have any place in a trial by jury. All cases of tuberculosis are incipient when they begin. The United States census statistics show that in 1921 the death rate from tuberculosis of the lungs was 85.6 per 100,000 population of the United States. Without doubt the soldier could reasonably have been classed as totally disabled at the date of his discharge. Had his disease thereafter been arrested so that he was able to continuously follow any kind of gainful occupation, appellees would not be entitled to recover. But that did not occur. The disease was not arrested, and total disability continued until the day of his death. I think a case for the jury was presented and there was sufficient evidence to sustain the verdict. I therefore respectfully dissent.