Although there are many indications that Balbona suffered from tuberculosis at all times from the date of his discharge from the army, the evidence is strong that he did not know of it.
Plaintiff's contention is that Balbona's lack of awareness of his serious illness and his real physical condition constituted a circumstance beyond his control and was a legal excuse for his failure to make a timely application for reinstatement of his insurance and a waiver of the premiums.
In Landsman v. United States, 92 U.S.App.D.C. 276, 205 F.2d 18, a suit was brought on a policy of national service life insurance by a widow beneficiary of a war veteran. The veteran contracted Hodgkins' disease during his period of service and was suffering from it when he was discharged. He was continuously and totally disabled from his disease from the time of his discharge from the army until the time of his death about two years later. He had let his service insurance lapse and had not applied for reinstatement. Until shortly before his death he was unaware of his real condition and of the serious nature of his illness. In reversing the District Court which had denied recovery, the Court of Appeals for the District of Columbia said, 205 F.2d at page 22:
'Giving the phrase 'circumstances beyond * * * control' its fair meaning, free of artificial restriction, we think that ignorance of the existence or seriousness of an injury or disease may in a proper case constitute such a circumstance -- if the ignorance is in fact beyond control. Here, the plaintiff in substance alleges that the insured consulted physicians, freely revealed his symptoms, and was guided by the advice received: but that his true condition was not diagnosed until he was on his deathbed. We think that on these allegations it was error to conclude as a matter of law that the insured's failure to apply for waiver of premiums was unexcused.'
The Landsman case has been followed by the Court of Appeals for the Eighth Circuit in a tuberculosis case, United States v. Myers, 213 F.2d 223, and by the Court of Appeals for the Ninth Circuit in a case involving chronic leukemia, Kershner v. United States, 215 F.2d 737. Under the principle of law established by these cases and in view of the evidence indicating that Balbona was unaware of the serious nature of his illness although he had much medical attention, it is apparent that there is sufficient evidence in the present case to support the jury's finding that Balbona's failure to make timely application for reinstatement of his insurance and a waiver of the premiums thereon was due to circumstances beyond his control.
Defendant contends that the phrase 'circumstances beyond Balbona's control' should have been defined more specifically by the trial judge in his charge.
Particularly, it contends, that the jury should have been instructed that mental incompetence was the only circumstance which could have excused Balbona's failure to apply for a waiver of the payment of his premiums.
There is some authority for defendant's contention, see Aylor v. United States, 5 Cir., 1952, 194 F.2d 968, but the later cases, cited above, seem to represent the better view and will be followed.
Defendant's motions for judgment n.o.v. and for a new trial will be denied.