United States v. Walker

• Decision Date: 18 May 1935
• Docket Number: No. 7515.,7515.
• Citation: 77 F.2d 415
• Parties: UNITED STATES v. WALKER.
• Court: U.S. Court of Appeals — Fifth Circuit

77 F.2d 415 (1935)

UNITED STATES v. WALKER.

No. 7515.

Circuit Court of Appeals, Fifth Circuit.

April 13, 1935.

Rehearing Denied May 18, 1935.

J. Gregory Bruce, Atty., Department of Justice, and Will G. Beardslee, Director, Bureau of War Risk Litigation, Department of Justice, both of Washington, D. C., and Philip H. Mecom, U. S. Atty., of Shreveport, La., for the United States.

Thos. W. Leigh and B. D. Allbritton, both of Monroe, La., for appellee.

Before BRYAN, HUTCHESON, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

This was an action, begun June 6, 1932, on a war risk insurance certificate or policy which lapsed on May 31, 1919. Appellee's petition alleged that "at and prior to the date of his discharge from the military service on or about April 23, 1919, he was suffering from active pulmonary tuberculosis, bronchial asthma, chronic bronchitis, chronic tonsillitis, and pleurisy, and that at and prior to the time of his said discharge and continuously thereafter up to the present time he has been totally and permanently disabled by reason of said disabilities." The just-mentioned allegation was put in issue. The petition alleged that on June 26, 1931, petitioner filed with the War Risk Insurance Bureau a claim for insurance benefits due him under the certificate sued on, that said bureau thereafter handed down a ruling denying petitioner's said claim, which ruling was dated May 27, 1932, and was received by petitioner on May 31, 1932. Those allegations were admitted by the appellant. Upon the conclusion of the evidence the defendant, appellant here, moved the court to direct a verdict in its favor. The court denied that motion.

In this court for the first time the appellant challenged the claim in suit on the ground that it was barred under the statute (World War Veterans' Act, 1924, § 19, as amended 38 USCA § 445) which provides: "No suit on yearly renewable term insurance shall be allowed under this section unless the same shall have been brought within six years after the right accrued for which the claim is made or within one year after the date of this amendatory Act July 3, 1930, whichever is the later date: * * * Provided: * * * Provided further, That 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." Under the statute the period of limitation was extended beyond July 3, 1930, the date of the enactment of the statute, for the period elapsing between the filing in the bureau of the claim sued upon and the denial of that claim by the director. The claim sued upon having been filed in the bureau on June 26, 1931, and this suit having been brought on June 6, 1932, the suit was brought within the time allowed if within the meaning of the statute the denial of the claim by the director became effective upon appellee's receipt on, May 31, 1932, of notice of that action. Appellant contends that the denial became effective on the day it was dated, May 27, 1932. In our opinion that contention is not sustainable. It is to be noted that under the statute the period of extension begins with "the filing in the bureau of the claim sued upon," and ends, not with the filing of the order denying the claim, but with "the denial of said claim by the director." It well may be supposed that in enacting the statute the law-makers had in mind the methods pursued in the bureau in dealing with such claims, that claims are transmitted by claimants from all parts of the country, and that a claimant first learns of the bureau's action on his claim when he is informed of that action by the bureau, and that communications between claimants and the bureau generally are by mail. Nothing in the language of the statute indicates a purpose to make a denial of the claim effective prior to delivery of notice of it at the place of the claimant's address. A regulation covering the matter of giving notice of disagreement to the claimant was in force at the time appellee's claim was acted on. That regulation provides for the claimant being informed by letter of a denial of his claim, and that "the suspension of the statute of limitations provided by Section 19 shall cease from and after the date of this letter plus the number of days usually required by the Post Office Department for the transmission of regular mail from Washington, D. C. to the claimant's last address of record." The adoption of that regulation was the exercise of a power conferred by section 19 of the World War Veterans' Act, as amended (38 USCA § 445). Boan v. United States (D. C.) 3 F. Supp. 219. It could not reasonably have been contemplated that the period of extension of limitation would end, with the result of enabling the claimant to bring suit on his claim, prior to the receipt at claimant's last address of record of notice of the denial of his claim. Certainly it was not contemplated that it would be permissible for a claimant to institute suit on his claim prior to his receipt of information of the denial of that claim by the director. The language used in the statute is entirely consistent with the existence of an intention that the denial of the claim become effective at the time of the receipt at the claimant's address of notice of that action. We concur in decisions to the effect that the suspension of limitation ends at that time, not before the claimant could have been aware that he had the right to bring suit on his claim. Weaver v. United States (C. C. A.) 72 F.(2d) 20; Creasy v. United States (D. C.) 4 F. Supp. 175.

A summary of the material evidence follows: The appellee had an eighth grade education. Before he entered the army he was engaged in farming and as a laborer. Just prior to his enlistment he was working for the Benson Lumber Company as an edger of rough-edge lumber that came from the saw. While serving in France he had influenza and mumps in October and November, 1918, and received treatment in several hospitals prior to his being transferred to a convalescent camp. After leaving that camp he was returned to the United States, and was discharged at Camp Shelby, Miss., on April 23, 1919. He stated: "I felt bad all the time I was in the convalescent camp, the embarkation camp and on my trip home up to my discharge. I was short of breath and had a severe cough, and expectorated." When he was discharged, he signed a statement to the effect that he did not have any reason to believe that he was suffering from the effects of any wound, injury, or disease, or that he had any disability or impairment of health, whether or not incurred in the military service. He testified that he did not know what that statement was, and that he was not asked any questions about his health or anything of that nature. His commanding officer signed a statement to the same effect, and the examining surgeon certified that a careful physical examination given the appellee at that time showed that he was physically and mentally sound. Upon his discharge, appellee went to his father's home, and remained there approximately four or five months. He testified that while there he felt bad, was weak, coughed, expectorated quite a bit, and had pains in his right side; that he did not do any work while there until the latter part of August, 1919; that about the middle of June, 1919, he went to see Dr. Carey, who told him that he had a severe case of bronchitis. From August, 1919, until the spring of 1921, appellee worked for the Benson Lumber Company. He first worked there as an edger, the position which he held before entering the army, and held that job several months, but felt bad and was unable to work all the time, and was assisted in the work; then his employer gave him a job of doing carpenter work building sheds, which was lighter work, which he did not do continuously. He estimated the time he worked for the Benson Lumber Company as about one-half time. His wages were from $3 to $4 a day, mostly $3.50 a day for the time he worked. He left because he was not able to do the work his employer expected of him. He married in October, 1919. From the spring of 1921, to October, 1921, appellee lived with his wife's step-father, and did no work. In October, 1921, he was sent by the Veterans' Bureau to the Veterans' Hospital at Alexandria, La., for treatment for pulmonary tuberculosis. Before entering that hospital, he signed the following statement: "Having been informed by the Medical Examiner that I am suffering from tuberculosis, and understanding the necessity of me receiving proper care and treatment, in order that I may regain my health, I am prepared to accept such treatment and hospitalization as may be decided necessary for my improvement and cure.

"I will do all in my power to assist in this treatment, fully complying with all instructions and regulations, and...