103 F.2d 676 (10th Cir. 1939), 1729, Dumas v. United States

Docket Nº:1729, 1735, 1736.
Citation:103 F.2d 676
Party Name:DUMAS et al. v. UNITED STATES. CRAIG v. SAME. GRAHAM et al. v. SAME.
Case Date:February 27, 1939
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 676

103 F.2d 676 (10th Cir. 1939)

DUMAS et al.

v.

UNITED STATES.

CRAIG

v.

SAME.

GRAHAM et al.

v.

SAME.

Nos. 1729, 1735, 1736.

United States Court of Appeals, Tenth Circuit.

February 27, 1939

Rehearing Denied April 25, 1939.

Page 677

Lawrence E. Goldman, of Kansas City, Mo. (Frank R. Daley, of Kansas City, Mo., on the briefs), for appellants.

Fendall Marbury, Sp. Asst. to Atty. Gen. (Summerfield S. Alexander, U.S. Atty., and R. T. McCluggage, Asst. U.S. Atty., both of Topeka, Kan., Julius Co. Martin, Director, Bureau of War Risk Litigation, of Washington, D.C., and Wilbur

Page 678

  1. Pickett, Sp. Asst. to Atty. Gen., on the briefs), for the United States.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

PHILLIPS, Circuit Judge.

These are actions to recover upon policies of war risk insurance.

The facts are these:

Cause No. 1729

George W. Hill entered the military service of the United States on May 14, 1918, and was honorably discharged February 8, 1919. While in the service he applied for and received a $10,000 policy of war risk insurance. Mary I. Hill was designated as beneficiary therein.

On October 26, 1929, and prior to the running of the statute of limitations, Mary I. Hill, acting as guardian for George W. Hill, commenced an action in the District Court of the United States for the District of Kansas, numbered 3429 on the docket of such court, to recover total and permanent disability benefits under such policy from Marcy 20, 1919. George W. Hill died on June 26, 1930.

On August 21, 1930, Mary I. Hill was duly appointed as the administratrix of his estate. On April 12, 1935, with leave of court, she filed an amended petition in cause No. 3429 wherein she suggested the death of George W. Hill and prayed that she be substituted as a party plaintiff, both as administratrix and individually.

On July 11, 1935, the United States filed its motion to dismiss cause No. 3429 on the ground it had not been revived within one year after the death of the insured. On June 28, 1937, the trial court entered its order dismissing cause No. 3429. On August 6, 1937, Mary I. Hill, as administratrix of the estate of George W. Hill, deceased, and Mary I. Hill, individually as beneficiary, brought this action on the policy.

Thereafter, Maxine Dumas, as the administratrix of the estate of George W. Hill, deceased, and Olive Harlin, executrix of the estate of Mary I. Hill, deceased, were substituted as parties plaintiff.

On November 18, 1937, the United States filed a motion to dismiss the action setting up as the ground therefor the bar of the statute of limitations provided by 38 U.S.C.A. § 445.

The trial court sustained the motion and entered judgment dismissing the action. This is an appeal therefrom.

Cause No. 1735

Eugene H. Craig entered the military service of the United States on May 7, 1917, and was honorably discharged on August 31, 1919. While in the service he applied for and received a $10,000 policy of war risk insurance. Emma Melvina Craig was designated as beneficiary therein. She died on March 1, 1932.

On July 26, 1929, and prior to the running of the statute of limitations, Eugene H. Craig commenced an action in the District Court of the United States for the District of Kansas, numbered 3393 on the docket of such court, to recover total and permanent disability benefits under such policy from August 31, 1919. He died February 7, 1934. On February 9, 1934, Ray M. Craig was duly appointed administrator of his estate.

On August 5, 1935, the United States filed its motion ti dismiss cause No. 3393 on the ground that it had not been revived within one year after the death of Eugene H. Craig. On August 31, 1935, Ray M. Craig, as administrator of the estate of Eugene H. Craig, filed a motion suggesting the death of Eugene H. Craig and asked leave to file an amended petition and to be substituted as a party plaintiff. On May 22, 1936, the trial court entered its order dismissing cause No. 3393. On appeal therefrom, the order...

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