United States v. Green

• Decision Date: 30 October 1939
• Docket Number: No. 9077.,9077.
• Citation: 107 F.2d 19
• Parties: UNITED STATES v. GREEN.
• Court: U.S. Court of Appeals — Ninth Circuit

107 F.2d 19 (1939)

UNITED STATES v. GREEN.

No. 9077.

Circuit Court of Appeals, Ninth Circuit.

October 30, 1939.

John B. Tansil, U. S. Atty., of Butte, Mont., Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C., Wilbur C. Pickett, Sp. Asst. to Atty. Gen., and Keith L. Seegmiller, Atty., Dept. of Justice, of Washington, D. C., for the United States.

Busha & Greenan, of Great Falls, Mont., for appellee.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

Delbert Green brought suit against the United States upon a policy of War Risk Insurance, filing his complaint July 10, 1933. He alleged that he entered the United States Army on or about June 28, 1918, and served to and including January 31, 1919, on which date he was discharged; that between said dates he made application for and was issued a policy of War Risk Insurance in the sum of $10,000, premium payments for which were deducted from his monthly pay; that during the period for which said policy was in force he suffered injuries and contracted diseases which rendered him wholly unable to follow any substantially gainful occupation; that the disabilities were of such a nature as to render him thereafter permanently unable to follow any substantially gainful occupation; that he made application for payment of benefits under such policy June 25, 1931, which was denied by the bureau, notice of which was mailed January 5, 1933, and received by plaintiff January 12, 1933; and that said denial constituted a disagreement within the provisions of the World War Veterans' Act of 1924, 38 U.S.C.A. § 421 et seq. The defendant answered, maintaining that the insurance was issued July 5, 1918, and lapsed May 1, 1919, for non-payment of premium; that application for payment of benefits was dated July 1, 1931, and received by defendant on that date; that no "disagreement" existed; and that payment of benefits was barred by the provisions of Section 19 of the World War Veterans' Act of 1924, as amended.

Counsel for the respective parties entered into a stipulation, as follows:

"It is hereby stipulated and agreed by and between the parties to the above-entitled action through their respective counsel, that the above-entitled cause may be tried before the court sitting without a jury, and the parties hereto, hereby specifically reserve the right to appeal from any decision rendered herein.

"Dated this 16th day of May, 1934."

Pursuant to this stipulation trial was had before the court sitting without a jury, and evidence was introduced by both parties with reference to the seasonable filing of the claim and the institution of the action and, as well, upon the merits of the case.

It appears in the evidence that the date of plaintiff's discharge from the army was January 31, 1919; that the policy lapsed May 1, 1919; that the application for benefits was dated and filed July 1, 1931 (although plaintiff's complaint alleged the date to be June 25, 1931); that denial of the demand for benefits was dated January 5, 1933; that the original complaint was filed January 13, 1933; and that the amended complaint was filed July 10, 1933.

The Act of Congress of July 3, 1930, 46 Stat. 991, 992, 38 U.S.C.A. § 445, amended Section 19 of the World War Veterans' Act of 1924 to extend the right, among other things, to bring suit upon a policy of yearly renewable term insurance to one year after date of approval of the amendatory act. This Act further provided: "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." 46 Stat. 993.

By waiting until July 1, 1931, to present his claim the plaintiff brought himself to within two days of the bar of the statute, which would leave him but two days after denial for filing an action. It was therefore necessary that plaintiff file his action by January 12, 1933, at the latest. The complaint was not filed until January 13, 1933, one day beyond the allotted time.

On January 2, 1936, the court below filed its memorandum decision dismissing the action upon the ground of lack of jurisdiction, the complaint not having been filed within time. Judgment pursuant thereto was duly entered January 8, 1936.

June 29, 1936, an act of Congress referring to the World War Veterans' Act and suspending the limitation period was approved (49 Stat. 2034, 38 U.S.C.A. § 445d), which read in part as follows: "* * * any suit which has been dismissed solely on the ground that the period for filing suit has elapsed but wherein the extension of the period for filing suit as prescribed herein would have permitted such suit to have been heard and determined may be reinstated within ninety days from the date of enactment of this Act June 29, 1936. * * *."

Thereafter, and pursuant thereto, the plaintiff moved to reinstate the case for decision on the merits, and the motion was granted over objection of defendant.

The lower court filed an opinion on the merits October 19, 1937; holding in favor of the plaintiff, the court adopted and filed findings of fact and conclusions of law and judgment based thereon. The defendant appeals. Two questions are presented on the record and briefs:

(1) "Whether defendant's waiver of a jury trial in 1934 was binding with reference to the issue of total permanent disability after the case was reinstated in 1936?

(2) "Whether there was any substantial evidence to support a finding that plaintiff became totally permanently disabled on or prior to May 1, 1919?"

I. In suits at common law, where the value in controversy exceeds the sum of twenty dollars, the right of trial by jury is preserved by the Seventh Amendment to the Constitution of the United States, U. S.C.A. But, since the Government can be sued only upon such terms as it prescribes, it is essential to the right in cases...