Tyson v. United States, 3811.

• Decision Date: 02 April 1935
• Docket Number: No. 3811.,3811.
• Citation: 76 F.2d 533
• Parties: TYSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

76 F.2d 533 (1935)

TYSON v. UNITED STATES.

No. 3811.

Circuit Court of Appeals, Fourth Circuit.

April 2, 1935.

W. H. Yarborough, Jr., of Raleigh, N. C. (H. C. Blackwell, of Fayetteville, N. C., and J. M. Broughton, of Raleigh, N. C., on the brief), for appellant.

William B. Snow, Sp. Asst. to the Atty. Gen. (James O. Carr, U. S. Atty., of Wilmington, N. C., Will G. Beardslee, Director, Bureau of War Risk Litigation, of Washington, D. C., and Wilbur C. Pickett and Fendall Marbury, Sp. Assts. to the Atty. Gen., on the brief), for the United States.

Before PARKER, Circuit Judge, and McCLINTIC and HAYES, District Judges.

PARKER, Circuit Judge.

This is an appeal in a war risk insurance case in which the suit of plaintiff was dismissed for lack of jurisdiction on the ground that it was not instituted within the time required by statute. The suit was instituted November 17, 1932, and asked recovery on a policy of war risk insurance which was kept in force by the payment of premiums until December, 1918; the allegation of the petition being that at that time insured was totally and permanently disabled. Insured relied upon the fact that he had filed claim for insurance with the Veterans' Administration to extend the period within which suit might be instituted beyond July 3, 1931, the date upon which it would otherwise have been barred by statute. 38 US CA § 445. There is no dispute as to the filing and rejection of the claim, the facts with respect to which are as follows:

On December 2, 1930, the Veterans' Administration wrote a letter to insured advising him that the local rating board was of opinion that he was not entitled to compensation, for the reason that he was not shown to have a service connected disability which disabled him to a compensable degree. With this letter were inclosed forms 526-c and 526-f, which insured was directed to execute and return at once if he desired to apply for a disability allowance. Insured filled in and executed these forms and forwarded them to the Veterans' Administration, by which they were received and filed on December 12, 1930. Form 526-c was an application for disability allowance under section 200 of the World War Veterans' Act of 1924 as amended July 3, 1930 (section 11 38 USCA § 471). It contained no statement that insured was or had been totally or permanently disabled or that he made any claim under his policy of war risk insurance. Form 526-f was as follows: "I hereby make formal application for any benefits under the War Risk Insurance Act, as amended, and the World War Veterans' Act, 1924, as amended, to which it may be found that I am, or have been, entitled. I have not previously made application for the benefits."

On July 2, 1931, insured executed and mailed to the Veterans' Administration a claim for insurance benefits under his policy, claiming that he had been totally and permanently disabled since September 10, 1918. This claim was received by the Veterans' Administration on July 3, 1931, and was denied by the director on November 12, 1932. The letter of denial, which was dated November 12, 1932, contained the following statement: "You may consider such denial final for the purposes of instituting suit under section 19 of the World War Veterans' Act, 1924, as amended. If you accept the denial of the claim by the Council as final, the suspension of the statute of limitations provided by section 19 shall cease from and after the date of this letter plus the number of days usually required by the Post Office Department for the transmission of regular mail from Washington, D. C. to your last address of record." The date of the Washington postmark on this letter was November 14th, and it was received by insured on November 16th; two days being the period usually required for transmission of mail from Washington to the address of the insured. As stated, the suit was commenced by the filing of the petition on November 17th, although service was not made upon the United States attorney until November 19th.

It is clear, we think, that the claim filed on December 12, 1930 on forms 526-c and 526-f was not a claim for insurance under the war risk insurance policy. The statute with relation to suits on claims under war risk insurance policies (38 USCA § 445) provides: "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." There is nothing in the claim which alleges permanent and total disability at a time when the contract of insurance was in force, or which shows any intention to claim insurance benefits. See United States v. Collins (C. C. A. 4th) 61 F.(2d) 1002; Wilson v. U. S. (C. C. A. 10th) 70 F.(2d) 176; United States v. Peters (C. C. A. 8th) 62 F.(2d) 977; United States v. Densmore (C. C. A. 9th) 58 F.(2d) 748.

Plaintiff must depend, therefore, upon the claim filed with the Veterans' Administration on July 3, 1931, to avert the bar of the statute of limitations; and, while the filing of that claim unquestionably tolled...