United States v. Powell

• Citation: 93 F.2d 788
• Decision Date: 04 January 1938
• Docket Number: No. 4221.,4221.
• Parties: UNITED STATES v. POWELL.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

93 F.2d 788 (1938)

UNITED STATES v. POWELL.

No. 4221.

Circuit Court of Appeals, Fourth Circuit.

January 4, 1938.

Julius C. Martin, Director, Bureau of War Risk Litigation, of Washington, D. C. (Claud N. Sapp, U. S. Atty., of Columbia, S. C., and Keith L. Seegmiller, Atty., Department of Justice, of Washington, D. C., on the brief), for the United States.

P. H. McEachin, of Florence, S. C., for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal in a war risk insurance case in which there were verdict and judgment for the plaintiff on a finding, which the government does not contest, that the insured soldier became totally and permanently disabled on January 25, 1919, while the policy sued on was in force. The soldier died in 1925; and his father and mother, who were beneficiaries under the life insurance feature of the policy, immediately filed claim thereunder, which was denied. Both the father and mother died in the year 1931. After their deaths, on July 2, 1931, the administrator of the soldier filed claim with the Veteran's Administration for the full amount of the policy, and when the claim was denied filed suit for the full amount thereof within the time allowed by law. Thereafter, he qualified as administrator of the soldier's father and mother, and on December 30, 1936, was allowed to amend his complaint so as to sue as administrator of the father and mother as well as administrator of the soldier. The persons entitled to the recovery by the plaintiff as administrator of the soldier are the soldier's brothers and sisters, and they are entitled also to plaintiff's recovery as administrator of the father and mother. They were entitled to the entire amount of the policy both at the time claim was made by the administrator in 1931 and at the time that he instituted suit in 1932.

The plaintiff in his several capacities as administrator of the soldier and of the soldier's father and mother was given judgment in the court below for the entire amount due under the policy. As administrator of the soldier he recovered monthly installments of $57.50 from January 25, 1919, the date of the soldier's disability, until September 25, 1925, the date of his death, also commuted monthly installments in the sum of $28.75 from and after March 20, 1931, the date of the death of the father, and from and after June 5, 1931, the date of the death of the mother. As administrator of the father and mother he recovered monthly installments of $28.75 with respect to each from the death of the soldier to their respective deaths. The government does not question the correctness of his recovery as administrator of the soldier. Its contention is that no recovery should have been permitted him as administrator of the father or mother: (1) Because no claim was filed in that capacity; and (2) because he was not joined as plaintiff in that capacity until the right to sue had been barred by the statute of limitations.

On the first question we think that the claim filed on July 2, 1931, by the administrator was a sufficient compliance with the statute to justify a recovery of the installments payable under the policy to the father and mother, without considering the claim filed by them. At that time the persons beneficially entitled to any recovery under the policy by the administrator of the soldier were his brothers and sisters; and these were the persons beneficially entitled to the recovery of the installments due the estate of the father and mother. The claim was filed by the administrator in behalf of these brothers and sisters of the soldier, who were thus beneficially entitled to the whole amount due under the policy and was filed for the full amount due thereunder. The statute provides, 38 U.S.C.A. § 445: "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 Administrator of Veterans' Affairs or someone acting in his name on an appeal to the Administrator." (Italics ours.) Had the claim filed by plaintiff been allowed, the money would have gone to the proper persons who were beneficially entitled to it, whether considered as next of kin of the soldier or of his parents; and to deny recovery of a large part of the money that the government justly and admittedly owes them merely because the claim which was filed in their behalf was not filed in the name of three administrators instead of one, would be to carry technicality entirely too far. As we said in the case of United States v. Townsend, 4 Cir., 81 F.2d 1013, 1014: "The only purpose of requiring the filing of claim as a prerequisite to suit is to give notice to the government that claim is being made under the policy so that it may make investigation and pay any amount due claimant without being subjected to the trouble and expense of litigation; and any claim showing `intention to claim insurance benefits' answers this purpose. Congress doubtless realized that many claims would be made by illiterate claimants without the advice and assistance of counsel, and intended that a claim either calling attention to total and permanent disability or showing an `intention to claim insurance benefits' should be sufficient. It was no doubt to avoid such technical rulings as we are asked to make in this case that Congress embodied in the statute the broad provision which we have quoted."

On the second point, the suit as originally instituted was for the entire amount of the policy, and recovery would have been for the benefit of the persons who are in fact the persons beneficially entitled, whether the suit is by one administrator or by three. When it was discovered that a part of the amount sued for was technically recoverable only by the administrators of the father and mother of the soldier, the trial judge properly allowed the plaintiff, who had qualified as their administrator, to be made a plaintiff in that capacity as well as in his capacity as administrator of the soldier. Lopez v. United States, 4 Cir., 82 F.2d 982, 987. As said in the case cited: "The clear weight of authority supports the rule, that `an amendment changing capacity in which a plaintiff sues does not change the cause of action so as to let in the defense of limitations.' See exhaustive note on this subject in 74 A.L.R. pages 1269-1276. And this is the rule applied by the federal courts under R.S. § 954, 28 U.S.C.A. § 777; Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 576, 33 S.Ct. 135, 57 L.Ed. 355 Ann.Cas.1914B, 134; McDonald v. State of Nebraska, C.C.A., 101 F. 171; Leahy v. Haworth, C.C.A., 141 F. 850, 4 L.R.A., N.S., 657; Reardon v. Balaklala Consol. Copper Co., C.C., 193 F. 189, affirmed, C. C.A., 220 F. 584; Quaker City Cab Co. v. Fixter, C.C.A., 4 F.2d 327; Weldon v. United States, C.C.A., 65 F.2d 748; Keystone Coal & Coke Co. v. Fekete, C.C.A., 232 F. 72, 73; Bixler v. Pennsylvania R. Co., D.C., 201 F. 553."

The attitude of the Supreme Court on the question of permitting amendme...