Byrd v. United States
| Decision Date | 10 November 1939 |
| Docket Number | No. 1839.,1839. |
| Citation | 106 F.2d 821 |
| Parties | BYRD v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Hal M. Black, of Wichita, Kan. (H. F. Hudson, of Wichita, Kan., and Frank C. Wade, of Terre Haute, Ind., on the brief), for appellant.
R. T. McCluggage, Asst. U. S. Atty., of Topeka, Kan. (Summerfield S. Alexander, U. S. Atty., of Topeka, Kan., Julius C. Martin, of Washington, D. C., Director, Bureau of War Risk Litigation, Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and Fendall Marbury, of Washington, D. C., Atty., Department of Justice, on the brief), for the United States.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
This is an action on a policy of war risk insurance issued to Earl W. Owens. It was brought by Anna Marguerite Thomison, as administratrix of the estate of Earl W. Owens, deceased, and in her individual capacity as beneficiary under the policy. While the action was pending Thomison died and it was revived in the name of C. M. Byrd, as administrator de bonis non of Owens' estate and as administrator of Thomison's estate.
The petition contained two counts. In the first it was alleged that on March 29, 1918, Owens enlisted in the military service of the United States; that on April 8, 1918, he applied for and received a $10,000 policy of war risk insurance; that on or about June 1, 1918, while in the military service of the United States and while such policy was in full force and effect, due to disease of the mind and body, he became unable to follow any gainful occupation with reasonable regularity and became totally and permanently disabled; that he was discharged from the Army on June 23, 1918, as an insane person; that his disability continued until his death on October 22, 1934; that on October 24, 1921, he was awarded total and permanent disability benefits; that the accrued installments under the award were paid, and current installments were paid until December 22, 1922, when payments under the award were terminated; that on October 14, 1932, he filed a claim for insurance benefits with the Director General of the Bureau of War Risk Insurance; and that the claim was denied.
The allegations of the first count were incorporated in the second count by reference. In the latter count it was further alleged that premiums were paid on the policy from December 22, 1922, until and including the month of July, 1926.
Plaintiff sought recovery on the first count for 240 monthly installments of $57.50 from June 1, 1918, less the 54 installments paid under the award; and in the event the court should find that Owens became totally and permanently disabled between December 22, 1922, and September 1, 1926, recovery in the alternative on the second count for 240 monthly installments of $47.73, commencing with the inception of such total and permanent disability, and for the refund of premiums paid after such total and permanent disability arose. The United States filed a general denial.
Trial by jury was waived and the cause tried to the court. Byrd introduced evidence to establish that Owens became totally and permanently disabled on or about June 1, 1918.
The United States, over the objection of counsel for Byrd, introduced evidence to establish that the disability from which Owens suffered antedated his induction into the military service of the United States and the issuance of the policy. That was its principal defense.
At the close of all the evidence, the government interposed a motion for a directed verdict which was overruled. The court thereupon made the following findings:
"* * * the court * * * finds the issues generally in favor of the defendant and against the plaintiffs, and finds that the insured, Earl W. Owens, did not become permanently and totally disabled within the meaning of the law at any time while the policy of insurance sued upon herein was in effect through payment of premiums thereon."
Byrd did not by request for a declaration of law that he was entitled to judgment, motion for judgment, or other like motion, challenge the sufficiency of the evidence to support the findings of the trial court.
On March 12, 1938, judgment was entered for the United States.
The petition for appeal was filed April 27, 1938, and the appeal was allowed May 9, 1938.
Under well-settled limitations governing the review on appeal in jury-waived cases, obtaining before the effective date of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the sufficiency of the evidence to support the findings and judgment on this record is not open to review. White v. United States, 10 Cir., 48 F.2d 178, 181. Whether it would be feasible and just to apply the new rules in the instant case we need not determine because the judgment must be reversed on another ground.
Under Section 875, 28 U.S.C.A., the rulings of the court in the progress of the trial in a jury-waived case if excepted to at the time and duly presented by a bill of exceptions may be reviewed upon appeal. The phrase "rulings of the court in the progress of the trial" embraces rulings on the admission and rejection of evidence. City of Key West v. Baer, 5 Cir., 66 F. 440, 443; White v. German Alliance Ins. Co., 1 Cir., 103 F. 260.
It will be noted that in the special finding the court did not find that Owens was not totally and permanently disabled, but that he "did not become permanently and totally disabled within the meaning of the law at any time while the policy of insurance sued upon herein was in effect through payment of premiums thereon." This finding could be predicated as well on the evidence introduced over the objection of Byrd to establish that Owens' disability antedated his induction into the military service and the issuance of the policy as on the fact that it arose after the policy had lapsed. Hence, we think the question, was the defense that Owens' disability antedated his induction into the military service and the issuance of the policy barred by the incontestable provision, is presented for review.
Section 402 of Art. 4 of the Act of October 6, 1917, 40 Stat. 409, provided:
"That the director, subject to the general direction of the Secretary of the Treasury, shall promptly determine upon and publish the full and exact terms and conditions of such contract of insurance."
Pursuant thereto, the Director on October 15, 1917, published Bulletin No. 1, which in part read as follows:
"* * * if the insured became permanently or totally disabled before this policy was applied for, it shall, nevertheless, be effective as life insurance, but not against such disability."
Section 30 of the Act of August 9, 1921, 42 Stat. 157, reads as follows:
Section 29, supra, 40 Stat. 609, read as follows:
"That the discharge or dismissal of any person from the military or naval forces on the ground that he is an enemy alien, conscientious objector, or a deserter, or as guilty of mutiny, treason, spying, or any offense involving moral turpitude, or willful and persistent misconduct shall terminate any insurance granted on the life of such person under the provisions of Article IV, and shall bar all rights to any compensation under Article III or any insurance under Article IV."
Section 307 of the World War Veterans' Act 1924, 38 U.S.C.A. § 518, reads as follows:
On November 1, 1922, the Veterans' Bureau ruled that the defense of antecedent disability was barred by the provision of Section 411, supra. See case of William Shortell, 22 G.C. 3729. On August 1, 1925, the Veterans' Bureau reaffirmed this ruling. See case of Harold A. Feiereisel, 34 G.C. 2004. We are advised by a memorandum filed herein by Honorable Frank T. Hines, Administrator of Veterans' Affairs, that those rulings reflect the practice followed by the Veterans' Administration until the decision of the Comptroller General in the case of Mabry W. Woodall, A-29723, 9 Comp.Gen. 291, January 16, 1930. See, also, Comptroller General's decisions in case of Hallam Singer, C-6836, 7 Comp. Gen. 526, and the case of Alexander M. Sinclair, XC-213,333, 8 Comp.Gen. 101.
Notwithstanding Section 518 was made retroactive to April 6, 1917, the courts and the Comptroller General on January 16, 1930, ruled that total permanent disability antecedent to the issuance of the policy constituted a good defense to a claim for total and permanent disability and that the same was not barred by the incontestable provisions of Section 518.1
Congress, by the Act of July 3, 1930, 46 Stat. 1001, 38 U.S.C.A. § 518, amended Section 518 to read in part as follows:
"All contracts or policies of insurance heretofore or hereafter issued, reinstated, or converted shall be incontestable from the date of issuance, reinstatement, or conversion, except for fraud, nonpayment of premiums, or on the ground that the applicant was not a member of the military or naval forces of the United States, and subject to the provisions...
To continue reading
Request your trial
-
CONTINENTAL ILLINOIS NAT. BANK & T. CO. v. United States, 7601.
...at the time he was inducted into service. United States v. Patryas, 303 U. S. 341, 58 S.Ct. 551, 82 L.Ed. 883; Byrd v. United States, 10 Cir., 106 F.2d 821, 126 A.L.R. 425. Sec. 307 very properly prevented the Government from contesting with the soldiers the fact that they were disabled whe......