Johnson v. United States, 1759.

• Decision Date: 17 March 1939
• Docket Number: No. 1759.,1759.
• Parties: JOHNSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

102 F.2d 729 (1939)

JOHNSON et al. v. UNITED STATES.

No. 1759.

Circuit Court of Appeals, Tenth Circuit.

March 17, 1939.

W. V. Pryor, of Sapulpa, Okl. (Heber Finch, of Sapulpa, Okl., on the brief), for appellants.

Fendall Marbury, Sp. Asst. to Atty. Gen. (Whit Y. Mauzy, U. S. Atty., of Tulsa, Okl., Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., and Wilbur C. Pickett, Sp. Asst. to Atty. Gen., on the brief), for the United States.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

BRATTON, Circuit Judge.

This is an action to recover on a policy of war risk insurance issued to Eli Kay, who was inducted into the military service August 2, 1918, discharged August 19, 1919, and died intestate September 4, 1922. Lucy McNack, a sister of the insured was the named beneficiary in the policy, and she died intestate April 22, 1925. Willie Kay, Chisso Kay, Rhoda Johnson, Betsy Hardridge, and Sam Johnson, purporting to act as administrator of the estate of the insured, made claim under the policy on March 16, 1931. A letter of denial was mailed on September 17, 1936, to each of the persons who signed the claim. The suit was instituted on October 6, 1936. Sam Johnson, as executor of the estate of the insured, and Rhoda Johnson were plaintiffs. An amendment to the petition was filed April 27, 1937, in which L. E. Hardridge, administrator of the estate of Lucy McNack, joined as plaintiff.

Trial by jury was waived. The court found that the insured became totally and permanently disabled before the expiration of thirty days after his discharge and while the policy was in force, and that the persons who signed the letter of claim constituted all of the heirs at law of both the insured and the beneficiary. But the court held that the action could be maintained only by the respective administrators of the estates of the insured and the beneficiary, that neither had submitted a claim, that no requisite disagreement existed, and that the action was barred by the statute of limitations as to the administrator of the estate of the beneficiary. Judgment was rendered for the government, and plaintiffs appealed.

The monthly payments which accrued prior to the death of the insured and the commuted value of the unaccrued installments at the death of the beneficiary are assets of the estate of the insured for which the personal representative of the estate has the exclusive right to maintain an action; and the monthly payments which accrued intermediate the death of the insured and that of the beneficiary are assets of the estate of the beneficiary for which the administrator thereof alone can maintain a suit. Singleton v. Cheek, 284 U.S. 493, 52 S.Ct. 257, 76 L.Ed. 419, 81 A.L.R. 923; McCullough v. Smith, 293 U. S. 228, 55 S.Ct. 157, 79 L.Ed. 297; United States v. Chavez, 10 Cir., 87 F.2d 16; United States v. Rasmussen, 10 Cir., 95 F.2d 842.

The filing of a claim and its denial, constituting a disagreement, is jurisdictional to the maintenance of an action of a contract of war risk insurance. Wilson v. United States, 10 Cir., 70 F.2d 176; McLaughlin v. United States, 10 Cir., 74 F.2d 506; United States v. Journey, 10 Cir., 82 F.2d 772. The purpose in requiring that a claim be filed as a prerequisite to suit is plain. It is to give the government notice that a claim is being asserted and thus afford an opportunity to make investigation of the facts and determine whether there is liability, without the trouble and expense of litigation. United States v. Townsend, 4 Cir., 81 F.2d 1013; United States v. Powell, 4 Cir., 93 F.2d 788; Marsh v. United States, 4 Cir., 97 F.2d 327; Coffey v. United States, 7 Cir., 97 F.2d 762, 117 A.L.R. 940.

A pivotal question in the case is whether the requisite disagreement existed as a basis for recovery on the part of the respective representatives of the two estates. Section 19 of the World War Veterans' Act, as amended, provides that the term "claim" means any writing which alleges permanent and total disability at a time when the contract of insurance was in effect, or which uses words showing an intention to claim insurance benefits; and the term "disagreement" means the denial of such claim, 38 U.S.C.A. § 445. The letter addressed to the Veterans' Bureau on March 16, 1931, stated that application was made for payment of War Risk Insurance on the ground of total and permanent disability of the insured while the premiums were still paid up; that such disability existed prior to July 29, 1919, or the date of discharge; and that as the result the policy did not lapse but remained in full force and effect. In respect to substance, it complied with the requirements of the statute for the making of a claim. Johnson signed it as administrator of the estate of the insured. He never was such administrator. He was executor before the claim was submitted and again after it was submitted, but not at the time of its submission. No claim was submitted by the administrator of the estate of the beneficiary. It is unnecessary to consider whether...