Hunnewell v. United States

• Decision Date: 16 January 1933
• Citation: 2 F. Supp. 389
• Parties: HUNNEWELL v. UNITED STATES.
• Court: U.S. District Court — District of New Hampshire

2 F. Supp. 389

HUNNEWELL v. UNITED STATES.

District Court, D. New Hampshire.

January 16, 1933.

Albert Terrien, of Nashua, N. H., for plaintiff.

Raymound U. Smith, U. S. Atty., of Concord, N. H.

MORRIS, District Judge.

This is an action brought to recover for total and permanent disability benefits under a policy of war risk insurance.

The petition was filed in court July 25, 1932, by Mary Ann Hunnewell, of Hudson, N. H., as beneficiary named in the policy of insurance, setting forth that her son Ralph Edward Hunnewell, deceased, enlisted in the Army of the United States as a private in the Marine Corps on April 24, 1917; that in 1918 he was granted war risk insurance in the sum of $10,000, and that the petitioner is the beneficiary named in said policy; that the soldier was discharged August 18, 1919, and that he was totally and permanently disabled within the terms and meaning of said policy down to the date of his death, May 22, 1928; that the plaintiff filed a claim with the Bureau of War Risk Insurance for payment of the installments of insurance, and that her claim has been rejected; and that there exists a disagreement between the plaintiff and said Bureau as to plaintiff's rights to the payment of said insurance.

On September 24, 1932, the defendant filed an answer admitting certain paragraphs relating to the service record of Ralph Hunnewell, denying that he was totally and permanently disabled, and ending with a denial of the plaintiff's right to recover because there is no record that the plaintiff has been appointed as executrix or administratrix of the estate of the deceased soldier, and moving that the petition be dismissed.

On September 28, 1932, the plaintiff filed a motion for leave to appear as administratrix of her son's estate, and on the same date the motion was allowed by the court. On October 14, 1932, the defendant moved to dismiss the petition on the ground that the suit is barred under the provisions of section 19 of the World War Veterans' Act 1924, as amended, for the reason that it was not filed within the time prescribed by said section.

Section 19 of the World War Veterans' Act of 1924, as amended by section 4 of the amendatory Act of July 3, 1930 (38 USCA § 445), provides that:

"No suit on yearly renewable term insurance shall be allowed under this section unless the same shall have been brought within six years after the right accrued for which the claim is made or within one year after July 3, 1930 the date of approval of this Amendatory Act, whichever is the later date, * * * Provided further, That this limitation is 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. * * *

"The term `claim' as used in this section, means any writing which alleges permanent and total disability at a time when the contract of insurance was in force, or which uses words showing an intention to claim insurance benefits and the term `disagreement' means a denial of the claim by the director or some one acting in his name on an appeal to the director."

The case was heard before the court on the defendant's motion to dismiss. An examination of the files and correspondence furnished the court by counsel for the parties discloses the following facts:

On June 8, 1928, Josephine C. Hunnewell, widow of the deceased soldier, filed an application for death compensation on a government blank, "Form 527. Revised Dec. 1926," the first page of which is devoted to instructions to applicants. At the top of the page there appears in bold type, "Read with great care," and immediately following in the text the sentence, "This form is a blank application for death compensation only." From the correspondence it appears that numerous affidavits to establish petitioner's claim were filed. The claim was denied December 6, 1928. From the next correspondence in the files it appears that Josephine C. Hunnewell then enlisted the services of Hon. E. H. Wason, member of Congress from New Hampshire, who wrote on June 5, 1930, to George E. Ijams, Assistant Director of the United States Veterans' Bureau, inclosing an affidavit of Dr. William E. Reed of Nashua, N. H., family physician of the Hunnewells, asking that the claim of Mrs. Hunnewell for compensation on account of the death of her husband be given careful consideration. This letter bears the file number "Hunnewell Ralph E, XC — 721 994."

The claim for compensation seems to have been revived by the filing of this additional evidence. From a reference hereinafter appearing, the claim for compensation was reconsidered and the previous decision confirmed October 29, 1931, by the rating subdivision.

On June 16, 1931, an informal claim for insurance benefits was filed by Josephine C. Hunnewell, the widow of the insured through her attorney Albert Terrien of Nashua, N. H. This claim bears the same file number above stated, and sets forth that the writer has been retained by the widow relative to making claim for "total and permanent disability under a contract of insurance."

The writer further states that "he understands this matter was taken up by the Bureau in 1929 and 1930, and that the claim was disallowed; that from a perusal of the letters covering the claim he understands that the reason for disallowance was lack of evidence of disability from the time of the soldier's discharge from the army." Receipt of this letter was acknowledged on June 26, by H. L. McCoy, Chief Insurance Claims Council, in which he states: "Receipt is acknowledged of your letter of recent date relative to a claim for `total and permanent disability benefits under a contract of insurance.'"

On June 29, 1931, a formal application was filed by the widow, Josephine Hunnewell, on "form 579, Revised May, 1931." This particular claim was denied, and Mrs. Hunnewell was so advised on December 1, 1931, in a letter from H. L. McCoy, Director of Insurance, in which he states that a decision was rendered on November 27, 1931, by the insurance claims council to the effect that the evidence is not sufficient to establish as a fact that the insured was totally and permanently disabled at a time when the contract of insurance was in force and therefore the claim has been denied.

"You may consider such denial final for the purpose of instituting suit under section 19 of the World War Veterans' Act 1924, as amended down to December 10, 1931." All of the correspondence and the applications were in the name of Josephine C. Hunnewell.

On December 10, 1931, Mary Ann Hunnewell, mother of the deceased soldier, and beneficiary in the policy of insurance, wrote a letter to Congressman Wason, saying: "The Veterans' Bureau has notified me that they will do nothing in regard to my claim," and expressing disappointment at the outcome.

Apparently, following the letter of December 10, 1931, measures were taken to secure a review of the compensation case. A hearing was had before the Board of Review February 18, 1932, at which time Mr. Wason appeared for Mrs. Hunnewell.

The...