United States v. Hossmann, 10608.

• Decision Date: 14 July 1936
• Docket Number: No. 10608.,10608.
• Citation: 84 F.2d 808
• Parties: UNITED STATES v. HOSSMANN.
• Court: U.S. Court of Appeals — Eighth Circuit

84 F.2d 808 (1936)

UNITED STATES v. HOSSMANN.

No. 10608.

Circuit Court of Appeals, Eighth Circuit.

July 14, 1936.

Randolph C. Shaw, Sp. Asst. to Atty. Gen. (L. A. Lawlor, Acting Director, Bureau of War Risk Litigation, of Washington, D. C., Fendall Marbury, Sp. Asst. to Atty. Gen., J. Gregory Bruce, Atty., Department of Justice, of Washington, D. C., and Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellant.

Lawrence E. Goldman, of Kansas City, Mo. (Frank R. Daley, of Kansas City, Mo., on the brief), for appellee.

Before WOODROUGH and THOMAS, Circuit Judges, and DEWEY, District Judge.

DEWEY, District Judge.

This is a war risk insurance case. The trial from which the appeal is taken resulted in a verdict and judgment for the appellee, whom for convenience we will refer to as the plaintiff.

The assignments of error urged on this appeal are as follows:

(1) The court erred in sustaining plaintiff's motion to reinstate this cause of action over the exception of the defendant at the time.

(2) The court erred in overruling defendant's motion for a directed verdict in its favor at the close of all the testimony for the reason that the plaintiff failed to prove by a fair preponderance of the testimony that he became permanently and totally disabled while the contract of insurance herein sued upon was in force and effect over the exception of the defendant at the time.

Suit was instituted by the plaintiff on August 8, 1930, on a war risk insurance contract for $10,000, payable in the event of death or permanent and total disability. The policy was in force to May 31, 1920. The disabilities are alleged to have been: High explosive shell wounds of the right thigh, traumatic neurosis, poisoned gas, bronchial asthma, and heart trouble, resulting in total diasabilty prior to the lapse of the policy.

The plaintiff alleged that the necessary disagreement to confer jurisdiction resulted from a denial on July 14, 1930, by the Veterans Bureau to pay plaintiff's claim. On July 3, 1930, there became effective an Act of Congress (38 U.S.C.A. § 445) which, among other things, defined what was meant by the term "disagreement" as used in the war risk insurance legislation, as: "A denial of the claim by the Administrator of Veterans' Affairs or someone acting in his name on an appeal to the Administrator," and that the definition of "disagreement" shall apply to all suits now pending against the United States.

The disagreement here is alleged to have arisen from a denial of the claim by a letter from the United States Veterans Bureau, signed by H. H. Milks, chief, awards division. Finding that this letter was not sufficient to raise a disagreement under the statutes then prevailing, and which provided that a disagreement could exist only after an appeal and decision by the director, the trial court dismissed the case on October 17, 1934, in these words: "Wherefore, it is ordered and adjudged that the plaintiff take nothing by his petition in this cause, and that the above entitled cause be and the same is hereby dismissed at the cost of the plaintiff." Later and on January 28, 1935, the Congress passed a resolution known as H. J. Res. 112 (c. 1, 49 Stat. 1, 38 U.S.C.A. § 445c), providing as follows:

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That a denial of a claim for insurance by the Administrator of Veterans' Affairs or any employee or agency of the Veterans' Administration heretofore or hereafter designated therefor by the Administrator shall constitute a disagreement for the purposes of section 19 of the World War Veterans' Act, 1924, as amended (U.S.C.Supp. VII, title 38, sec. 445). This resolution is made effective as of July 3, 1930, and shall apply to all suits now pending against the United States under the provisions of section 19 of the World War Veterans' Act, 1924, as amended, and any suit which has been dismissed solely on the ground that a denial as described in this resolution did not constitute a disagreement as defined by section 19 may be reinstated within three months from the date of enactment of this resolution."

On March 18, 1935, the plaintiff filed a motion to reinstate the cause under and by virtue of the provisions of this resolution and said motion was on the 27th day of March, 1935, sustained by the court and the case reinstated, and thereafter the case was tried upon its merits. It is from the ruling of the court in reinstating this case that the first assignment of error is directed.

It is suggested that the Congress does not have the power to reinstate in any court any case in which a final judgment has been entered; that this was not within the scope of legislative power; that setting aside a judgment and reinstating a case in which it was interested is an exercise of the judicial power which the Constitution vests exclusively in the courts.

But power delegated by Congress to a court for adjudication and settlement of claims against the United States is not such as is vested by the Constitution. As said in Williams v. United States, 289 U. S. 553, 557, 53 S.Ct. 751, 760, 77 L.Ed. 1372:

"And since Congress, whenever it thinks proper, undoubtedly may, without infringing the Constitution, confer upon an executive officer or administrative board, or an existing or specially constituted court, or retain for itself, the power to hear and determine controversies respecting claims against the United States, it follows indubitably that such power, in whatever guise or by whatever agency exercised, is no part of the judicial power vested in the constitutional courts by the third article. That is to say, a power which may be devolved, at the will of Congress, upon any of the three departments, plainly is not within the doctrine of the separation and independent exercise of governmental powers contemplated by the tripartite distribution of such powers." (Italics ours.)

The power delegated to the District Courts to hear and determine controversies over war risk insurance policies is therefore analogous to the power delegated to the Court of Claims with reference to other claims against the United States. And it has been expressly held that although a case has been adjudicated by such Court of Claims, the Congress may waive the adjudication and authorize a rehearing. Cherokee Nation v. United States, 270 U.S. 476, 486, 46 S.Ct. 428, 70 L.Ed. 694.

Here the United States government was in a somewhat dual position with reference to the litigation. It was the defendant in the case, but it was also authorized through the proper instrumentality, to wit, the Congress, to say what claims might be presented as against the government and what might be the scope, limitations, and procedure with reference to the enforcement of any such claim in the courts of the United States. We know of no constitutional inhibition against Congress waiving its right to claim an adjudication and to confer upon the courts the right to again and in any method the Congress desired, as far as the procedure is concerned, to have the case heard upon its merits. This is indicated in Frederick v. United States, 294 U.S. 695, 55 S.Ct. 511, 79 L.Ed. 1233; Id. (C.C.A.) 76 F.(2d) 1009. We find no error in the reinstatement of the case by the court.

The second assignment of error raises a question as to the sufficiency of the evidence to sustain the verdict, that is, as to whether the plaintiff became totally and permanently disabled while his insurance was in force prior to May 31, 1920. The court instructed the jury that "`total and permanent disability' as used in this contract, means that if by reason of some mental or physical disease — in this case there is no claim that the plaintiff is suffering or has been suffering from any mental disease, — it is impossible for one continuously to carry on any substantially gainful occupation, then that person is totally disabled. And if that disease or malady is of such nature as that it is reasonably certain to continue throughout the lifetime of the person afflicted with it and throughout his lifetime totally to disable him from carrying on any substantial gainful occupation, then he is not only totally disabled, but he is totally and permanently disabled."

The court's instructions were not excepted to, nor did either party request any instructions, so that the instructions as given became the law of the case. United States v. Nickle (C.C.A.) 70 F. (2d) 873, 878. In considering whether the evidence supports the verdict, the appellate court must...