Cunningham v. United States, 6960.

• Decision Date: 27 November 1933
• Docket Number: No. 6960.,6960.
• Citation: 67 F.2d 714
• Parties: CUNNINGHAM v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

67 F.2d 714 (1933)

CUNNINGHAM v. UNITED STATES.

No. 6960.

Circuit Court of Appeals, Fifth Circuit.

November 27, 1933.

Y. D. Mathes and Orrin H. Bonney, both of Houston, Tex., for appellant.

Douglas W. McGregor, Asst. U. S. Atty., of Houston, Tex., and Chas. R. Guinn, Atty., Veterans' Administration, of San Antonio, Tex., for the United States.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant, claiming for her ward "automatic insurance" benefits extended by section 401, Act of October 6, 1917 (40 Stat. 409),¹ brought this suit to compel their payment. The United States resisted the suit as wanting in jurisdictional basis, and also as without basis in fact. The point was made that claims for automatic insurance were not in their nature suable because founded not on contract but on bounty, and no provision had been made for suit on them. It was further contended that if the claim be considered one under a contract of insurance and suable under World War Veterans' Act 1924, § 19, as amended by Act March 4, 1925, section 445, title 38, USCA, still plaintiff could not sue because of failure to prove the disagreement required by the act as a prerequisite to suit.

The district judge ruled these points against the government, but, the evidence in, sustained its position that plaintiff had not made out a case on the facts, by giving the general charge in its favor. This appeal resulted.

The United States here vigorously renews its contentions on the jurisdiction. We take them up in order before addressing ourselves to appellant's complaint that she has been wrongfully deprived of the right to a jury verdict.

The first is untenable on its face. It is true that the grant is a gratuity in the sense that no premium is exacted of the soldier whose case it fits; but this is the only sense in which it is true. What is granted is a contract of insurance, having in all other respects than the requirement of premiums the same incidents, entitling the holder to the same rights and remedies, and governed by the same rules as contracts of insurance issued on applications and with the payment of premiums. The place where the language is found, the fact that it is an integral part of the act granting war risk insurance, the language itself "any person * * * shall be deemed to have applied for and to have been granted insurance," under the plainest principles of statutory construction compels this conclusion. Any other would do the greatest violence to the act. Indeed, the matter is so plain that the suability of these contracts has been assumed without question. United States v. Carlson (C. C. A.) 44 F.(2d) 5; Caprio v. United States (C. C. A.) 45 F.(2d) 520, 521.

The government's second point, that plaintiff has failed to prove the existence of the disagreement which is a necessary predicate to a suit, presents more difficulty. Plaintiff has been most informal in pleading and in proving this disagreement. When it is considered, however, that the disagreement claimed occurred, and this suit was filed before the amendment of July 3, 1930 (46 Stat. 992 38 USCA § 445) had been enacted, and when also it is considered that the United States answered the suit without pleading to the jurisdiction, and caused orders to be entered in it passing it for settlement for more than three years, and on the trial only contended, without making proof, that the officer of the Veterans' Bureau, who wrote the letter relied on as constituting the disagreement, was not authorized to disagree, we think the disagreement was at least prima facie made out. United States v. Bass (C. C. A.) 64 F.(2d) 467, 468; Falbo v. United States (C. C. A.) 64 F.(2d) 948, 949; Straw v. United States (C. C. A.) 62 F.(2d) 757; United States v. Kerr (C. C. A.) 61 F.(2d) 800; United States v. Alberty (C. C. A.) 63 F.(2d) 965; United States v. Hill (C. C. A.) 62 F.(2d) 1022.

When, however, we come to consider plaintiff's case on the merits, we find a fatal want of proof. Asserting twelve years after her ward's two months service in 1917, that at some time within those two months a condition of total and permanent disability arose which brought into existence a contract of matured insurance, plaintiff undertook a heavy burden. She could not sustain it by proof that such a condition might have then arisen. She could sustain it only by showing "by evidence contemporaneous with that time, the then totality and permanence of her ward's disability as a fact existing and accepted," or by showing "conditions then existing which, read in their own light, and in the light of subsequent events, make it reasonably probable that, though then unclaimed and unrecognized, total and permanent disability did then in fact exist....