United States v. Densmore, 6646.

• Decision Date: 16 May 1932
• Docket Number: No. 6646.,6646.
• Parties: UNITED STATES v. DENSMORE.
• Court: U.S. Court of Appeals — Ninth Circuit

58 F.2d 748 (1932)

UNITED STATES v. DENSMORE.^*

No. 6646.

Circuit Court of Appeals, Ninth Circuit.

May 16, 1932.

Samuel W. McNabb, U. S. Atty., and Dorothy Lenroot Bromberg, Asst. U. S. Atty., both of Los Angeles, Cal. (H. C. Veit, U. S. Veterans' Administration, of Los Angeles, Cal., of counsel), for the United States.

Ira A. Gwin, of Los Angeles, Cal., for appellee.

Before WILBUR and SAWTELLE, Circuit Judges.

WILBUR, Circuit Judge.

Appellee recovered judgment against the United States upon a war risk insurance policy which had lapsed on May 2, 1918. His claim was predicated upon the contention, which the jury sustained, that he had been permanently and totally disabled during the life of the policy. The suit was brought on July 9, 1930, some twelve years after it was alleged that the appellee's rights upon the policy had matured. The sole question raised by the appeal is whether or not the veteran made a claim upon his war risk insurance based upon his alleged permanent and total disability at a time when the contract of insurance was in force. Section 445, 38 USCA, World War Veterans' Act 1924, § 19, as amended July 3, 1930, 46 Stat. 992, provides:

"In the event of disagreement as to claim, including claim for refund of premiums, under a contract of insurance between the bureau and any person or persons claiming thereunder an action on the claim may be brought against the United States either in the Supreme Court of the District of Columbia or in the district court of the United States in and for the district in which such persons or any one of them resides, and jurisdiction is hereby conferred upon such courts to hear and determine all such controversies. * * *

"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, as amended, or this chapter."

The appellee alleged in his complaint and the government denied the making of such claim and the disagreement thereon. Appellee testified in part as follows:

"Q. Mr. Densmore, did you ever make a claim to the government for insurance? A. Yes, sir.

"Q. Do you remember about when that was? A. It was in '21, I think it was; I wouldn't be positive.

"Q. Did they act upon that claim? A. Well, I got a card from them, a statement that they didn't think I was entitled to it, that they could not find that I would be entitled to it, so that was all there was to it.

"On cross-examination by counsel for the defendant, the plaintiff testified as follows:

"Q. Did you state, Mr. Densmore, that you applied for insurance benefits in 1920 or 1921? Isn't it a fact that these documents that have just been read into evidence each have to do with compensation, and that what you have applied for is other than for insurance benefits? A. Well, I had Mr. Doomer, I believe it was, at Eric, Oklahoma, write to see about my insurance for me; he was the American Legion man there.

"Q. Did you ever put in anything yourself for insurance as distinguished from compensation, Mr. Densmore? A. Well, I didn't do it, I got him to do it because I can't write.

"Q. Did you write your signature? A. Yes, ma'am.

"Q. It was for insurance and not for compensation? A. Yes, that is what I put on.

"Q. You say you can't write. Is this your handwriting, Mr. Densmore? A. I could write my name.

"Q. What date was that that you made that claim? A. I don't know, I couldn't say. * * *

"Q. You signed something that you thought was an insurance claim, did you? A. Well, I paid my money for the insurance when I was in the army, when I was discharged I was totally disabled, and I felt I was entitled to my insurance.

"Q. You felt all the time after that that you were entitled to the insurance? A. Yes, ma'am, I did.

"Q. About when was this, do you remember at all, when you applied for insurance? A. I couldn't be positive what time it was, but I think it was in '21 or '22, somewhere along there.

"Q. Is this your signature? A. Or maybe, '20, I wouldn't be positive. * * *

"Q. Now, at that time you stated that you were not carrying government insurance, Mr. Densmore. How about that? A. Well, I wasn't carrying it, because I had not carried it since I came out of the army. How could I carry it when I wasn't able to do anything myself.

"Q. You felt that the insurance was not in force at that time? A. Well, according to what they wrote me that is all I had to go by.

"Q. You didn't put in any further claim? A. No, ma'am.

"Q. You didn't send any further document to the Veterans' Bureau? A. No, I didn't send anything. I had no money to do it.

"Q. You knew that you could submit a claim through the Veterans' Bureau? A. No, I didn't know nothing about it.

"Q. So there was no disagreement between you and the Veterans' Bureau because you accepted what the Veterans' Bureau stated? A. They wrote me a card stating that they could not find where I was eligible to this insurance, and that is all there was said. And I kept the card, but it were burned with my other papers."

The burden was upon the appellee to establish that he had made a claim to the Veterans' Bureau that he had become totally and permanently disabled while his policy of insurance was still in force or which used words showing an intention to claim insurance benefits. There is no evidence that the appellee did this. The statement that he had made a claim to the government for insurance, and that in reply thereto he received a card "from them" stating that "they did not think I was entitled to it" and "that they could not find that I would be entitled to it," is very far from stating that a definite claim was made of a right under a policy of insurance for the benefits thereof upon the theory that the applicant had suffered an injury during the life of the policy for which the government had agreed to compensate the insured. Upon the cross-examination of the appellee the matter was left in an even greater state of uncertainty. The evidence is not only insufficient to establish the fact that a claim was made upon the insurance policy in question by reason of disability suffered during the life of the policy, but there is no evidence whatever of a disagreement between the appellee and the director of the Bureau of War Risk Insurance or some one acting in his name on the appeal to the director. The most that can be inferred from the appellee's testimony is that somebody connected with the government had written a statement to the effect that they did not think he was entitled to it; that they could not find that he was entitled to it.

One of the obvious purposes of the legislation with...