Roskos v. United States

• Decision Date: 04 September 1942
• Docket Number: No. 7920.,7920.
• Citation: 130 F.2d 751
• Parties: ROSKOS v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

130 F.2d 751 (1942)

ROSKOS v. UNITED STATES.

No. 7920.

Circuit Court of Appeals, Third Circuit.

Argued May 5, 1942.

Decided September 4, 1942.

Samuel A. Schneiderman, of Bayonne, N. J., for appellant.

Thomas E. Walsh, Department of Justice, of Washington, D. C. (Charles M. Phillips, U. S. Atty., of Trenton, N. J., and Samuel M. Gold, Atty., Department of Justice, of New York City, Julius C. Martin, Director, Bureau of War Risk Litigation, and Fendall Marbury, both of Washington, D. C., Atty., Department of Justice, on the brief), for appellee.

Before BIGGS, JONES, and GOODRICH, Circuit Judges.

JONES, Circuit Judge.

The plaintiff sued in her individual right to recover the benefits of a war risk insurance policy whereof she was the designated beneficiary. The policy, which had been issued upon the life of the beneficiary's brother, lapsed on April 30, 1919, because of nonpayment of premiums. It is the plaintiff's contention that the policy was revived by virtue of Sec. 305 of the World War Veterans' Act of 1924 as amended¹ and that liability thereunder matured because of the insured's total and permanent disability "long prior to July 1, 1927". The insured died intestate on May 25, 1934, without having made claim to the insurance benefits under the policy. The instant suit was filed on November 6, 1940.

The government moved to dismiss on the grounds "that the complaint does not state facts sufficient to constitute a cause of action; that the action is not commenced within the time prescribed by Section 445, Title 38, U.S.C.A., and is, therefore, barred by the statute of limitations and that this Court is without jurisdiction to hear and determine this action." The learned court below dismissed the complaint on the ground that the plaintiff (a sister) was not within the designated class of beneficiaries entitled to the benefits of a war risk insurance policy revived under Sec. 305 of the War Veterans' Act of 1924 as amended by the Act of July 2, 1926. The present appeal is from that order.

The allegations of the complaint disclose so plainly that suit upon the policy was barred by the statute of limitations that we deem it unnecessary to discuss or consider any of the other questions incidental to the appeal.

The limitation upon the right to sue the government on a policy of war risk insurance is contained in Sec. 19 of the War Veterans' Act of 1924 as amended, 38 U. S.C.A. § 445, which in material part 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, whichever is the later date, * * * Provided, That for the purposes of this section it shall be deemed that the right accrued on the happening of the contingency on which the claim is founded: Provided further, That this limitation is suspended for the period elapsing between the filing in the Veterans' Administration of the claim sued upon and the denial of said claim by the Administrator of Veterans' Affairs. * * *."

It has been squarely ruled that "the contingency upon which the claim is founded", as specified in the above quoted provision, is "the contingency on which liability under the policy was bottomed, namely, — permanent disability or death while the policy remained in force." United States v. Towery, 306 U.S. 324, 331, 59 S.Ct. 522, 83 L.Ed. 678, rehearing denied 306 U.S. 668, 59 S.Ct. 640, 83 L.Ed. 1063. In that case Mr. Justice Roberts, speaking for the Supreme Court, further said at page 331 of 306 U.S., at page 525 of 59 S.Ct., 83 L.Ed. 678, that "* * * We think then that, reasonably construed, the section provides that there shall be but one right, — that is, the right to benefit payments, and but one critical contingency which conditions that right, namely, the occurrence of permanent total disability or death while the policy remains in force." Cf. Bono v. United States, 2 Cir., 113 F.2d 724, 725; Cole v. United States, 72 App.D. C. 118, 112 F.2d 203, certiorari denied 311 U.S. 647, 61 S.Ct. 31, 85 L.Ed. 413; Simmons v. United States, 4 Cir., 110 F.2d 296, 298; Cable v. United States, 7 Cir., 104 F.2d 541, 543, and Wilson v. United States, 10 Cir., 70 F.2d 176, 179. Of course, if total and permanent disability does not occur before the insured's death intervenes, it is then the death which conditions the claim. The period of limitations begins to run accordingly. Cf. Cole v. United States, loc. cit. supra. But, where total and permanent disability exists, it necessarily precedes death and, hence is the condition which operates to mature the claim against which the period of limitations runs.

Such was the ruling in the Towery case. That it was intended to mean what it plainly says is fully confirmed by the result there arrived at, as an examination of the facts of that case will readily disclose. The pertinency of the decision in the Towery case to the facts of the instant case is plain. It may also be noted that the opinion in the Towery case makes no distinction between the two claims under the policy there asserted in a single suit, viz., the claim as administrator and the claim as beneficiary. The distinction which the present appellant suggests is, therefore, not well founded. In the case of Ivy v. United States, 5 Cir., 84 F.2d 37, 39, upon which the appellant principally relies, the court expressly approved its earlier conclusion in United States v. Tarrer, 5 Cir., 77 F.2d 423, 425, that the insured's total and permanent disability and not his death was the contingency upon which the particular claim was founded.

In the present case the plaintiff expressly avers that "the insured became permanently and totally disabled long prior to July 1, 1927, by reason of which his war risk (term) insurance matured". Taking this...