Jordan v. United States

• Citation: 36 F.2d 43,73 ALR 312
• Decision Date: 12 November 1929
• Docket Number: No. 5916.,5916.
• Parties: JORDAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

73 ALR 312, 36 F.2d 43 (1929)

JORDAN v. UNITED STATES.

No. 5916.

Circuit Court of Appeals, Ninth Circuit.

November 12, 1929.

F. C. Struckmeyer and I. A. Jennings, both of Phœnix, Ariz., and Alvin Gerlack of San Francisco, Cal., for appellant.

John C. Gung'l, U. S. Atty., of Tucson, Ariz., and J. O'C. Roberts, Asst. Gen. Counsel, and James T. Brady, Lawrence A. Lawlor, and C. L. Dawson, Attys., U. S. Veterans' Bureau, all of Washington, D. C., for the United States.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

RUDKIN, Circuit Judge.

This was an action on a policy or policies of war risk insurance. The complaint alleged that on February 5, 1918, the plaintiff enlisted in the military service of the United States; that upon his application there was issued to him a policy of war risk insurance, whereby, in consideration of the premiums paid and to be paid, the United States obligated itself, among other things, to pay to him the sum of $10,000, in monthly installments of $57.50 each, in the event of his permanent and total disability, commencing at the date of such disability; that prior to and during the month of June, 1918, while the policy was in full force and effect, the plaintiff developed and became afflicted with epilepsy; that because of such epilepsy he became, on or about July 1, 1918, totally and permanently disabled; that plaintiff was discharged from the military service of the United States on September 14, 1918; that he has paid all premiums and has performed all covenants and agreements by him to be kept and performed; that the policy is now and ever since February 5, 1918, has been in full force and effect; that prior to July 11, 1927, plaintiff made demand on the Director of the Veterans' Bureau for the payment of the insurance; and that a disagreement has arisen between the bureau and the plaintiff over the claim. The answer denied the total and permanent disability as alleged and averred affirmatively that, if the plaintiff was disabled at all, he was as much disabled at the time of the issuance of the policy as at any time subsequent thereto, and that he has suffered no loss.

While the complaint alleged the issuance of a single policy, and the answer admitted the allegation, it appears from the instructions of the court that there were in fact two policies, for $5,000 each, the first bearing date March 11, 1918, and the second June 1, 1918; but no complaint is made because of the variance. The court instructed the jury, in effect, that if the plaintiff suffered from epilepsy and was totally and permanently disabled between the date of his entry into the military service of the United States and the dates of the issuance of the policies, their verdict should be for the defendant. The jury returned a general verdict for the defendant, accompanied by two special interrogatories, finding that the plaintiff was permanently and totally disabled from epilepsy between the date of his entry into the military service of the United States and the date of the two contracts of insurance. Upon the general verdict and the special findings, a judgment was entered in favor of the defendant, from which the present appeal was prosecuted.

If the appellant became totally and permanently disabled after his entry into the military service of the United States, and before applications for the policies in suit were made, and before the policies issued, the charge of the court was correct. because a policy of insurance does not ordinarily cover a loss already suffered. As said by the Attorney General of the United States:

"In cases which have heretofore arisen in the courts, I have advised the bureau that the insurance is collectible if applied for within the time allowed and before either total permanent disability or death has actually occurred, and hence is not defeated by the fact that the applicant was mortally ill. However, what is provided for is a contract of insurance against something that may happen and not of indemnity for something which has already happened. If no application has been made when death occurs, of course there is no insurance; and if total permanent disability has been incurred, a future application for insurance can not cover it." 31 Op. of Attys. Gen. 534.

The chief reliance of the appellant seems to be the incontestable provisions now contained in the War Risk Insurance Act. The...