Creasy v. United States

• Decision Date: 31 January 1933
• Citation: 4 F. Supp. 175
• Parties: CREASY v. UNITED STATES.
• Court: U.S. District Court — Western District of Virginia

4 F. Supp. 175

CREASY v. UNITED STATES.

District Court, W. D. Virginia, at Roanoke.

January 31, 1933.

Carleton Penn, of Roanoke, Va., for plaintiff.

Joseph C. Shaffer, U. S. Atty., of Roanoke, Va.

PAUL, District Judge.

This is a suit upon a policy of war risk insurance, to which the government has filed a plea of the statute of limitations.

The statute as amended July 3, 1930 (U. S. C. title 38, § 445 38 USCA § 445), provides that no such suit shall be allowed unless brought within six years after the right under the policy accrued, or within one year after July 3, 1930, whichever is the later date. In the present case, the latter alternative is applicable. The statute further provides that the limitation upon the bringing of such a suit shall be suspended for the period elapsing between the filing in the Veterans' Bureau of the claim sued upon and the denial of the claim by the Director.

The meaning and effect of the provision as to suspension of the limitation during the period when the claim is before the Bureau is clearly set forth in an opinion by Judge Chesnut, of the District Court for the District of Maryland, in the recent case of Hipkins v. United States, 1 F. Supp. 505, 506, with the reasoning and conclusions of which I fully agree.

As stated by Judge Chesnut: "The suspension of a statute of limitations for a certain period is, in effect, `time taken out,' for that period and adds the same period of time to the limitation provided in the statute. Applying the language of the statute to the facts of this case, we find it provided that the suit must be brought within one year from July 3, 1930, plus the period of suspension. * * *"

Or to put the matter somewhat differently: When the veteran filed his claim before the Bureau prior to July 3, 1931, the statute of limitations stopped running when he filed his claim; it resumed again when the claim was denied; and suit must be brought within such length of time following denial of the claim as was equal to the unexpired portion of the limitation when the claim was filed. To illustrate: If a veteran filed his claim before the Bureau on June 3, 1931, the statute of limitations was suspended as of that date and with thirty days of the period of limitation unexpired; if the claim was denied on November 15, 1931, then the veteran had thirty days thereafter, or until December 15, 1931, within which to bring suit.

I have no doubt that the above is the proper construction of the statute; but in the present case it becomes necessary to go further and determine the time when a claim is to be considered filed before the Bureau and the time when it is denied.

In this case, according to the stipulated facts, the claim was mailed at Roanoke on July 1, 1931, and a stamp placed on it at the Veterans' Bureau indicates that it was received there on July 3, 1931. The communication denying the claim is a letter from the Veterans' Bureau, which is dated May 6, 1932, but which the veteran states was received by him at Roanoke on May 10, 1932, about noon, the envelope indicating that it was mailed in Washington on May 9th. On May 11, 1932, a copy of the plaintiff's petition in this suit was filed in the office of the clerk of this court at Roanoke; on May 13, 1932, a copy thereof was served on the United States attorney at his office in Roanoke.

The plaintiff contends that the claim is to be treated as filed with the Bureau as of July 1, 1931, the date on which it was mailed from Roanoke; and to be treated as denied on May 10, 1932, the date when he received the letter informing him of its denial.

It is necessary here to determine (1) whether a claim is deemed to be filed as of the date when the claimant mails it to the Bureau or as of the date when it is received by the Bureau; and (2) whether it is to be treated as denied as of the date when the proper officer of the Bureau set down in writing his denial or as of the date when the claimant received such writing.

On the latter of these questions, I have little doubt. It seems logical that the claim is to be taken as denied as of the date when the claimant is informed of the denial. The limitation on bringing suit is suspended while the claim is under consideration by the Bureau, but begins to run again as soon as the claim is denied; and the duty then rests upon the claimant to bring his suit within such time as remains of the period of limitation. If the act of denial of the claim imposes upon the veteran the condition that he must sue within a limited time thereafter, surely he cannot be expected to comply with this condition until such time as he has knowledge of the denial of his claim. In fact, he cannot sue until he knows that his claim has been denied and is no longer under consideration at the Bureau. Only after he has received notice of the denial can he allege the disagreement which is essential to the maintenance of a suit. I hold, therefore, that the claim is to be taken as denied on the date when the claimant received the letter informing him of the denial. It may be argued that it is unreasonable to suppose that a letter dated May 6th in Washington did not reach Roanoke, Va., until May 10th. But the time when the letter was received is a matter to be shown by evidence, and in this case the only evidence introduced is that the letter of denial was received on May 10th, inclosed in an envelope postmarked at Washington on May 9th. With the enormous correspondence handled in the Veterans' Bureau, it is not improbable that the letter was not mailed for a day or so after May 6th. On the evidence, I must hold that the plaintiff received notice of the denial of his claim on May 10th, as stated by him.

The remaining question is whether a claim is deemed to be filed with the Bureau on the day it is received there or on the day it is mailed by the claimant.

The statute (U. S. C. title 38, § 445 38 USCA § 445) provides that the limitation shall be suspended for the period elapsing "between the filing in the bureau of the claim sued upon and the denial of said claim by the director." (Italics supplied.) The use of the word "file" or "filing" in a legal sense is almost universally held to mean the delivery of the paper or document in question to the proper officer and its receipt by him to be kept on file.

"A paper or document is said to be filed when it is delivered to the proper officer and lodged by him in his office." Barber Asphalt Paving Co. v. O'Brien, 128 Mo. App. 267, 107 S. W. 25, 29.

"The filing of a paper is the delivery of it to the officer at his office, to be kept by him as a paper on file, and the file mark of the officer is evidence of filing. * * *" Masterson v. Southern R. Co. (Ind. App.) 82 N. E. 1021, 1022.

There are numerous other cases holding that "filing" means the actual delivery to the officer or place designated, and that a paper is filed only at the time it is so delivered to and received by such designated officer. It is true that most of these cases deal with pleadings or other formal documents required to be filed within specified limits or with deeds and similar instruments filed for recordation. But there is no reason to assume that Congress, in its use of the term in this statute, intended it to have a significance...