Horton v. United States, 14406.

• Decision Date: 30 November 1953
• Docket Number: No. 14406.,14406.
• Citation: 207 F.2d 91
• Parties: HORTON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

207 F.2d 91 (1953)

HORTON v. UNITED STATES.

No. 14406.

United States Court of Appeals Fifth Circuit.

July 10, 1953.

Rehearing Denied August 6, 1953.

Writ of Certiorari Denied November 30, 1953.

M. B. Grace, Birmingham, Ala., for appellant.

Russell, Chapin, Atty., Department of Justice, Washington, D. C., John D. Hill, U. S. Atty., William L. Hogue, Asst. U. S. Atty., Birmingham, Ala, Joseph D. Guilfoyle, Acting Asst. Atty. Gen., D. Vance Swann, Atty., Department of Justice, Washington, D. C., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.

Writ of Certiorari Denied November 30, 1953. See 74 S.Ct. 233.

BORAH, Circuit Judge.

This appeal is from a judgment for the United States, defendant, below, in an action for insurance proceeds brought by Anna Horton, the beneficiary named in a policy of National Service Life Insurance, certificate No. N-11 629 671, issued by the defendant upon the life of John Horton while he was in the military service.

The insured John Horton, was inducted into the military service of the United States on October 5, 1942. He was discharged on October 13, 1945, because of service connected disability, and died on July 19, 1948, from hemorrhage caused by cancer of the pancreas. Premiums on the policy were paid through October, 1945, by deductions from insured's service pay. On September 24, 1945, insured applied to the Veterans Administration for a waiver of premiums under Section 602(n) of the National Service Life Insurance Act of 1940, as amended August 1, 1946, 38 U.S.C.A. § 802(n), because of continuous total disability. This application was granted by a decision rendered on July 11, 1946, and insured was notified that he was entitled to waiver from payment of premiums from February 9, 1945, to November 13, 1945, and there was refunded to him the money which had been deducted from his pay to pay premiums during the period of time that they were waived. No premiums on that insurance were paid on December 1, 1945, or at any time during the life of the veteran nor did the veteran at any time subsequent to November 13, 1945, file any application for waiver of premiums.

Within one year subsequent to the death of the insured, appellant filed with the Administrator of the Veterans Administration an application for waiver of premiums which application was denied on the ground that the insurance had lapsed on December 1, 1945, for non-payment of premiums. On appeal this decision of the Administrator was affirmed by the Board of Veterans Appeals. Having exhausted her administrative remedies appellant filed this action in the District Court claiming that she was entitled to the proceeds of the policy because the veteran was totally disabled at the time he filed his application with the Veterans Administration for waiver of payment of premiums and by reason thereof his policy continued in force without payment of premiums. In the alternative it is claimed that insured's failure to make timely application for waiver of premiums or his failure to submit satisfactory evidence of the existence or continuance of total disability was due to circumstances beyond his control.

The District Court was of opinion that the right of waiver of insurance premiums under Section 802(n) permitting same in event of total disability, is not self-executing upon the occurrence of disability, but operates only after application therefor is made and granted. He accordingly concluded that after the termination of waiver of premiums by the Veterans Administration, the insured was obligated to begin paying premiums again and if he desired thereafter a waiver of premiums or an extension of that waiver it was incumbent upon the veteran to make new application therefor; that Horton thereafter failed to file a timely application for the continued waiver of premiums and that his failure to do so was not caused by circumstances beyond his control. For these reasons and on the authority of the decisions¹ of this Court to which he referred, the District Court directed a verdict for the defendant.

Appealing from the judgment that was entered on the jury verdict appellant contends that this court should determine and hold that because the veteran became continuously and totally disabled his policy continued in force without payment of premiums. In support of this contention it is argued that Horton complied with the statute which requires the filing of but one application for waiver of premiums; that the Veterans Administration had no authority to limit the waiver without examining the insured as the statute requires, to determine whether or not the total disability had ceased; and had no right or authority to lapse the insurance until the statute had been complied with and the Administrator had determined that the total disability had ceased. In the alternative it is claimed that the insured's failure to file a timely application for the continued waiver of premiums was due to circumstances beyond his control. We do not at all agree.

The statute²...