Stallman v. United States, 9700.
| Decision Date | 10 November 1933 |
| Docket Number | No. 9700.,9700. |
| Parties | STALLMAN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
David F. Loepp, of Sioux City, Iowa, for appellant.
F. H. Maughmer, Chief Atty., Veterans' Administration, of Des Moines, Iowa (Harry M. Reed, U. S. Atty., of Waterloo, Iowa, on the brief), for the United States.
Before GARDNER, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.
This is a suit upon a policy of war risk insurance in which a demurrer to the amended petition was sustained on the ground that the cause was barred by the statute of limitations. The plaintiff having declined to plead further, judgment of dismissal was entered by the court, and the plaintiff appeals.
Before a veteran is entitled to maintain an action of this kind to recover upon a policy of war risk insurance, his claim must have been presented to the Veterans' Bureau and rejected, so that it can be found that a disagreement exists. The existence of such a disagreement is an indispensable prerequisite to the right to maintain an action. Berntsen v. United States (C. C. A.) 41 F.(2d) 663; United States v. Alberty (C. C. A.) 63 F.(2d) 965.
It appears from the amended petition that the alleged right of the plaintiff on which the suit is brought accrued in 1918, and it is alleged that claim was filed on his behalf with the Veterans' Bureau at Washington, "on or about the 27th day of June, 1921," and that "on or before September 5, 1931, a disagreement was had."
Section 445, title 38 USCA, provides: "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 bureau of the claim sued upon and the denial of said claim by the director."
Except for the filing of the claim with the Veterans' Bureau, the suit of the plaintiff for recovery on the policy would have been barred under the provisions of the section quoted within one year after July 3, 1930; i. e., on July 3, 1931. When the claim was filed on the 27th of June, 1931, all of the time allowed by the statute for the bringing of the suit had run except six days (i. e., the time between June 27th and July 3d). The filing of the claim with the bureau caused the running of the statute to be suspended during consideration of the claim by the administrative body, and ...
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...the claimant of notice of the disposition of his claim; and contra, Tyson v. United States, 4 Cir., 1935, 76 F.2d 533; Stallman v. United States, 8 Cir., 1933, 67 F.2d 675; United States v. Thomson, 10 Cir., 1934, 71 F.2d 860; Corn v. United States, 10 Cir., 1934, 74 F.2d 438; Harrop v. Uni......
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Amodio v. Reconstruction Finance Corp., 562.
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