Florian v. United States

• Decision Date: 16 October 1940
• Docket Number: No. 7168.,7168.
• Citation: 114 F.2d 990
• Parties: FLORIAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

114 F.2d 990 (1940)

FLORIAN v. UNITED STATES.

No. 7168.

Circuit Court of Appeals, Seventh Circuit.

June 19, 1940.

Rehearing Denied October 16, 1940.

Stephen A. Cross, of Chicago, Ill., for appellant.

Julius C. Martin, Wilbur C. Pickett, and Fendall Marbury, Dept. of Justice, all of Washington, D. C., and Wm. J. Campbell, B. F. Schwartz, U. S. Attys., both of Chicago, Ill., William M. Lytle, Atty. Dept. of Justice, of Chicago, Ill., for appellee.

Before SPARKS, MAJOR, and TREANOR, Circuit Judges.

MAJOR, Circuit Judge.

This is an appeal from an order of the District Court entered October 23, 1939, as modified by its order of October 26, 1939, which order originally and as modified contains certain findings of fact and conclusions of law raised by plaintiff's motion to strike a certain paragraph of defendant's answer, and for summary judgment.

Defendant has moved to dismiss the appeal on the ground that this court is without jurisdiction. It therefore seems important to state the facts as they pertain to the jurisdictional question.

Suit was filed September 7, 1932 upon a $10,000 War Risk Insurance contract issued to William G. Florian, now deceased, in which Anton Florian, his father, was named beneficiary, alleging that the insured became permanently and totally disabled while the insurance was in force. To this petition defendant filed an answer on February 26, 1936, denying the material allegations of the complaint. On December 9, 1937, the plaintiff (executor of the Last Will and Testament of the deceased beneficiary) filed an amended petition, and on February 18, 1938, an additional count. On January 18, 1939, defendant filed an answer to the amended petition and additional count. The additional count, so far as now material, alleged that at the time the insured was discharged from the military service he was suffering from a compensable disability and, that at the time of his death on May 21, 1924 there was due and owing him, and he was entitled to, compensation remaining uncollected in a sum sufficient, if applied to the payment of premiums, to purchase insurance under the provisions of Section 305 of the World War Veterans' Act, June 7, 1924, as amended, 38 U.S.C.A. § 516.

There was no allegation in this additional count that the plaintiff ever became or claimed to be totally and permanently disabled during his lifetime or while his insurance, so revived as alleged by unpaid compensation under the provisions of Section 305, was in force. The defendant, by its answer to the additional count, admitted the allegations thereof, but alleged as an affirmative defense that the insured, prior to his death, was rated as, and as a matter of fact was, permanently and totally disabled; that at such time there was no compensation due him which would revive insurance under the provisions of Section 305. Plaintiff raised the legal sufficiency of this answer by motion to strike and for a summary judgment. The legal question thus presented to the District Court was, whether the defendant could defeat a cause of action by showing that the insured became permanently and totally disabled prior to his death and at a time when no compensation was due him, after admitting there was compensation due him at the time of his death.

It appears from the record that a hearing was had upon the issue thus raised by plaintiff's motion to strike and for summary judgment, at which hearing the court considered evidence presented either by witnesses or by stipulation of the parties. The order complained of includes findings of fact and conclusions of law, which in some respects go beyond the scope of the issue presented by the motion to strike. For instance, it was found that on August 23, 1932, the Insurance Claims Counsel of the Veterans' Administration determined that the insured became totally and permanently disabled for insurance purposes on October 22, 1923, and so remained until the date of his death. While this finding, in connection with the defense alleged in defendant's answer, no doubt presents a serious legal question on the merits of the case, it is not material unless we have jurisdiction to consider the appeal.

The court in its original order, in substance, concluded that defendant's answer stated a good defense. It ordered that plaintiff's motion to strike the portion of the answer to which it was directed be denied; that the motion for summary judgment upon said additional count be denied "without prejudice to the rights of the respective parties under the issues made by the additional count and the answer thereto." As stated, the court later entered an order modifying its conclusions as found in its former order. It seems pertinent to quote the following portion of the court's modified order: "From the foregoing facts, the Court concludes that the question as to whether or not the compensation remaining uncollected on the date of the death of the insured is available for the revival of insurance, under Section 305 of the World War Veterans Act of 1924, as amended, in favor of the beneficiary named by the insured, is not determinable at this time for the reason that such determination must depend upon the issue raised by the defendant in its pleading; namely, whether the insured was in fact permanently and totally disabled on October 18, 1923, as alleged by the defendant, prior to the death of the insured and on such issue there has been adduced no proof in this Court by either party, and, therefore, no finding can be made by the Court on the present state of the record on this issue. It is the opinion of the Court that in the event of a finding based on proof that the insured was permanently and totally disabled, as alleged by the defendant, prior to his death, the compensation remaining uncollected at the time of the insured's death, which accrued subsequent to the occurrence of such permanent and total disability, would not be available to revive any insurance as claimed by the plaintiff in its Motion to Strike Portion of Defendant's Answer and for Summary Judgment."

Plaintiff excepted to the entry of this order. No other judgment, decree or order was entered. The next action on the part of the plaintiff was his notice of appeal.

It is conceded, or at any rate not disputed, that our jurisdiction conferred by Section 19 of the World War Veterans' Act, 1924, as amended, 38 U.S.C.A. § 445, is limited by Section 225, 28 U.S.C.A. to a review of "final decisions" except in cases of interlocutory orders as specified in Section 227. It is defendant's position that the order appealed from is neither a "final decision" nor an interlocutory order, while plaintiff contends that it is a "final decision" and, in any event, an interlocutory order. We are convinced that defendant's contention must be sustained. The order plainly discloses that it was not a final adjudication of the issue presented by defendant's answer. It states "and on such issue there has been adduced no proof in this court by either party, and, therefore, no finding can be made by the court on the present state of the record on this issue." It is true the court decided the legal question presented by the motion to strike, which plaintiff argues was in effect a demurrer under the former practice and, that it elected to stand thereby. There is nothing in the record which so discloses, but it is argued that its action in appealing had that effect. Even if it be so considered, still the record is silent as to any judgment which might have been entered upon plaintiff's refusal to further plead.

No authority is cited and we know of none holding that an order denying a motion to strike (demurrer) is a "final decision" so as to be appealable. In Oklahoma K. & M. I. Ry. Co. v. Bowling, 8 Cir., 249 F. 592, 594, it is stated:

"An appeal has also been taken from an order denying a motion to dismiss the plaintiff's petition. The order was not followed by a decree disposing of the case, and is not appealable.

"The order of injunction is affirmed."

This court in Karl Kiefer Mach. Co. v. United States Bottlers Machinery Co., 7 Cir., 108 F.2d 469, on page 470, in considering what constitutes a "final decision" said: "* * * In determining whether a decree or judgment is interlocutory or final, the character of the decree or judgment is an important factor to be considered, and it should be borne in mind that a decree or judgment is the law's last word in a judicial controversy and may be defined as the final consideration and determination of a court upon matters submitted to it in an action or proceeding * * *."

In Jones v. St. Paul Fire & Marine Ins. Co., 5 Cir., 108 F.2d 123, 125, it is stated: "* * * And to refuse summary judgment, like overruling a motion to dismiss the action, is not a final judgment because the case still stands for regular trial. * * *"

Plaintiff states that a decision of this court in his favor would be final and would end the litigation and, that a decision affirming the trial court would likewise end the litigation, as the plaintiff has elected to stand by his motion. The first part of the statement may be true, but our jurisdiction must depend upon the finality of the action of the court below and not the effect which our decision...