United States v. Bass, 4730.

• Decision Date: 07 April 1933
• Docket Number: No. 4730.,4730.
• Citation: United States v. Bass, 64 F.2d 467 (7th Cir. 1933)
• Parties: UNITED STATES v. BASS.
• Court: U.S. Court of Appeals — Seventh Circuit

64 F.2d 467 (1933)

UNITED STATES v. BASS.

No. 4730.

Circuit Court of Appeals, Seventh Circuit.

April 7, 1933.

Oliver M. Loomis, George L. Rulison, and William B. Duff, all of South Bend, Ind., for the United States.

Walter R. Arnold, of South Bend, Ind., for appellee.

Before ALSCHULER and EVANS, Circuit Judges, and WILKERSON, District Judge.

WILKERSON, District Judge.

The appeal by the United States is from a judgment after verdict in an action upon a war risk insurance policy.

Appellee has filed a motion to strike the bill of exceptions on the ground that it was approved and filed at a time when the District Court had lost jurisdiction. The judgment was entered on October 3, 1931, at the February term of the District Court and defendant was allowed ninety days within which to file a bill of exceptions. The February term of the District Court ended on October 5, 1931, at which time the October term of the court commenced. On December 31, 1931, at the October term and within the time fixed in the order of October 3, 1931, the District Court made an order extending the time for the bill of exceptions until January 25, 1932. The bill of exceptions was approved and filed on January 19, 1932. The motion to strike is denied. In re Bills of Exceptions (C. C. A.) 37 F.(2d) 849; Cudahy Packing Co. v. Omaha (C. C. A.) 24 F.(2d) 3; Stickel v. United States (C. C. A.) 294 F. 808, 810; O'Connell v. United States, 253 U. S. 142, 40 S. Ct. 444, 64 L. Ed. 827, and kindred cases, in which the time for allowing bills of exceptions was expressly limited by standing rule, are not controlling here.

The grounds upon which a reversal is sought are: (1) The alleged failure of plaintiff to show the jurisdictional fact of disagreement between plaintiff and the Veterans' Bureau; (2) statements by the trial judge indicating his opinion that such a disagreement had been shown; (3) admission of improper hearsay evidence on the issue of disagreement with the bureau; (4) insufficiency of the evidence of total and permanent disability to sustain the recovery; and (5) the exclusion of evidence offered by defendant on the issue of disability.

Reversal is sought by the United States on the ground that there is no substantial evidence of a disagreement between appellee and the Veterans' Bureau as required by Act of June 7, 1924, c. 320, § 19, 43 Stat. 612, as amended by Act of March 4, 1925, c. 553, § 2, 43 Stat. 1302, 38 USCA § 445. That act authorized suit against the United States "in the event of disagreement as to claim under a contract of insurance between the bureau and any person or persons claiming thereunder." By Act of July 3, 1930, c. 849, § 4, 46 Stat. 992, 38 USCA § 445, the law was amended as follows: "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 and the term `disagreement' means a denial of the claim by the director or some one acting in his name on an appeal to the director. This section, as amended, with the exception of this paragraph, shall apply to all suits now pending against the United States under the provisions of the War Risk Insurance Act. * * *"

The instant suit was brought on August 10, 1927. The language of the act as to disagreement was, prior to the amendment of 1930, general in its terms. All that was required as a condition precedent to maintaining the suit against the United States was proof of disagreement between the bureau and the claimant. The formalities as to claims and denials thereof required by the amendment of 1930 were not in the law at the time this plaintiff brought his suit. We think that the evidence is sufficient to sustain the verdict of the jury that there was a disagreement between the claimant and the bureau within the meaning of the law prior to the amendment of 1930. The claimant testified that he had mailed several demands to the director of the Veterans' Bureau for settlement of his insurance. In 1925 George W. Ray, a retired business man and a former newspaper publisher, presented the claim of Bass to the bureau. Ray saw the director of the Veterans' Bureau, who referred him to an assistant and this assistant in turn referred him to some one else. Ray was finally referred to the head of the department with which he had to deal. In January, 1926, he received a letter referring to his appearance before the bureau and notifying him of the allowance of compensation to Bass. Bass had lost his policy and Ray took up the matter of its reissuance with the bureau. Ray again saw the director of the bureau and told him that he wanted the policy reissued or a duplicate furnished for a claim thereunder. The director called in his assistant and told the assistant what Ray wanted. Ray was referred in due course to the head of the war risk insurance division. That official said that Bass had no claim, that they were not reissuing policies, and that this policy had lapsed. On the next day Ray saw him again and was informed that the matter had been taken up with the director of the bureau who had rejected the claim and refused to pay it. In view of this and other evidence it is our opinion that there was evidence which warranted the jury in finding that the condition of the statute as it existed prior to the amendment of 1930 was complied with.

The numerous conferences which the Veterans' Bureau had with Ray and the letters which it sent to him in January, 1926, sufficiently established that the bureau recognized him as a representative of Bass. Bass himself testified that he had sent two written claims to the director and Ray testified to his repeated conferences with the Veterans' Bureau with reference to the claim and its rejection. If Ray's testimony is considered alone, still until the amendment of 1930 there was no statutory requirement as to the form of the claim, and no reason is perceived why the director could not consider a claim presented in any form satisfactory to him. His consideration of the claim would itself have the effect of a regulation for that particular case. The arguments of appellant based upon the regulations were proper in argument to the jury as to the credibility and weight of the evidence presented. As to disagreement with the director personally, the evidence shows that Ray dealt with the assistant to whom he was referred by the director and received from that assistant the notice that the claim had been disallowed. Moreover, prior to the amendment of 1930, the statute did not provide that the disagreement must be with the director personally. The only requirement was a disagreement with the bureau. The passage of the...