Candell v. United States

Decision Date11 June 1951
Docket NumberNo. 4213.,4213.
Citation189 F.2d 442
PartiesCANDELL v. UNITED STATES.
CourtU.S. Court of Appeals — Tenth Circuit

E. J. Candell pro se.

Max M. Bulkeley, U. S. Atty., Denver, Colo., and Henry E. Lutz, Asst. U. S. Atty., Denver, Colo., filed a brief for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.

PHILLIPS, Chief Judge.

The principal question presented by this appeal is whether Candell, the holder of a converted policy of National Service Life Insurance in the amount of $10,000, is entitled to maintain an action against the United States in the United States District Court for the District of Colorado, in which he seeks coercive relief in requiring the United States to retain on deposit, on an interest-accumulating basis, a special dividend payable to policyholders from the National Service Life Insurance Fund under Regulation R & P R-3426.1 promulgated April 29, 1949, or, in the alternative, money damages.

The policy in part provides:

"This policy will participate in and receive such dividends from gains and savings of the National Service Life Insurance Fund as may be determined by the Administrator. Dividends will be paid in cash, except that at the request of the Insured they may be left to accumulate on deposit provided this policy is in force on a basis other than extended term insurance. Interest on dividend accumulations will be credited annually at a rate to be determined by the Administrator. Dividend accumulations may be withdrawn at any time prior to lapse. Dividend accumulations on deposit at time of lapse will be applied only as a part of the net cash value to provide extended term insurance.

"Dividend accumulations and unpaid dividends may not be applied to pay premiums except upon the written request of the Insured made while this policy is not lapsed. Any dividend accumulations not previously withdrawn and any unpaid dividends will be payable in cash upon maturity of this policy to the person currently entitled to receive payments under the policy * * *."

The United States interposed a motion to dismiss on three grounds: (1) that the complaint did not state a claim upon which relief could be granted; (2) that the court did not have jurisdiction of the subject-matter; and (3) that the Administrator of Veterans' Affairs was an indispensable party. Attached to the motion was the affidavit of Harold W. Breining, Assistant Administrator for Insurance, Veterans' Administration, which, among other things, averred that the Administrator of Veterans' Affairs acting pursuant to authority vested in him by § 602(f) of the National Service Life Insurance Act of 1940, as amended, 38 U.S. C.A. § 802(f), determined there existed in the National Service Life Insurance Fund a surplus of $2,800,000,000, available for distribution as dividends to persons entitled to receive the same under policies of National Service Life Insurance, and further determined that such surplus should be paid in cash only as a special dividend pursuant to the provisions of the Regulation referred to above; that Candell had requested the Veterans' Administration to retain on deposit any dividends which he might be found entitled to receive on the policy referred to above; that such request had been declined as to such special dividend, but that Candell had been advised the request would be complied with in respect to any subsequent annual dividends.

The trial court sustained the motion without specifying the ground or grounds on which its decision was based, and dismissed the action.

At the threshold of the case, we are confronted with the question of jurisdiction.

Suits can only be instituted against the United States with its consent.1 In a recent case brought upon a lapsed policy of National Service Life Insurance we held that statutes waiving the immunity of the United States to be sued will be strictly construed and will be held only to embrace cases plainly within the terms of the statute waiving the immunity.2

Section 617 of the National Service Life Insurance Act, as amended, 38 U.S.C.A. § 817, is the only statute which authorizes suits to be brought against the United States in the United States District Courts upon policies of National Service Life Insurance. That section provides that in event of disagreement as to any claim arising under such Act, suit may be brought in the same manner and subject to the same conditions and limitations as are applicable to the United States Government life (converted) insurance under the provisions of § 19 of the World War Veterans' Act, 1924, as amended, 38 U.S.C.A. § 445.

Section 19, supra, provides that in the event of a disagreement as to a claim under a contract of insurance between the Veterans' Administration and any person or persons claiming thereunder, an action on the claim may be brought against the United States either in the United States District Court for the District of Columbia or in...

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7 cases
  • Whittier v. Emmet
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • June 23, 1960
    ...to show here that this disagreement was one for an "insurance benefit" within the meaning of 38 U.S.C. § 784(h).14 Candell v. United States, 10 Cir., 1951, 189 F.2d 442, indicates that disputes over dividends do not so qualify. As was pointed out in Candell, insurance dividends are realized......
  • Fowler v. United States
    • United States
    • U.S. District Court — Central District of California
    • September 21, 1966
    ...v. United States, 142 F.2d 240, 243 (C.A.2d 1944), cert. den. 323 U.S. 712, 65 S.Ct. 37, 89 L.Ed. 573 (1944) Candell v. United States, 189 F.2d 442, 444 (C.A.10th, 1951.) Nor can the plaintiff evade the doctrine of sovereign immunity by claiming that this suit is one against officers of the......
  • Rowan v. United States, 3933.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • October 23, 1953
    ...Courts upon a National Service Life Insurance policy. See cases cited in the preceding paragraph, and see Candell v. United States, 10 Cir., 1951, 189 F.2d 442, at page 444; United States v. Fitch, supra, 185 F.2d dissenting opinion at page 474. Plaintiff argues that the 1946 amendment to §......
  • Hormel v. United States
    • United States
    • U.S. District Court — Southern District of New York
    • June 3, 1954
    ...section 445 of title 38 U.S.C. was held inapplicable to a suit involving a National Service Life Insurance dividend in Candell v. United States, 10 Cir., 189 F.2d 442. The Court of Appeals there held that the "benefits" which section 445 referred to did not include the right to participate ......
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1 books & journal articles
  • Preparing for Year 2000 Litigation
    • United States
    • Colorado Bar Association Colorado Lawyer No. 27-12, December 1998
    • Invalid date
    ...827 P.2d 509 (Colo. 1992). 53. Connes v. Molalla Transport System, Inc., 831 P.2d 1316 (Colo. 1992). 54. Candell v. United States, 189 F.2d 442, 444 (10th 1951); Black's Law Dictionary, 6th edition, p. 802. 55. Zerega, No Y2K Safety Net: Most Insurance Policies Have Holes, InfoWorld at <......

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