Vincent v. United States

• Decision Date: 11 February 1935
• Docket Number: No. 6303.,6303.
• Parties: VINCENT v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

64 App. DC 178, 76 F.2d 428 (1935)

VINCENT v. UNITED STATES.

No. 6303.

United States Court of Appeals for the District of Columbia.

Argued January 10, 1935.

Decided February 11, 1935.

Warren E. Miller, of Washington, D. C., for appellant.

Leslie C. Garnett, U. S. Atty., and John W. Wood, Sp. Asst. to U. S. Atty., both of Washington, D. C., and Randolph C. Shaw, Sp. Asst. to Atty. Gen., for the United States.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

GRONER, Associate Justice.

Appellant brought this suit October 6, 1931, against the United States, on a contract of war risk insurance, under section 19 of the World War Veterans' Act of 1924, as amended (38 USCA § 445).

In his declaration he alleged that on the date his contract of insurance lapsed for nonpayment of premium, namely, May 1, 1919, he was suffering from a compensable disability; that he became totally permanently disabled on August 1, 1920; and that on the latter date there was due him compensation under a rating made by the Director of the United States Veterans' Bureau sufficient in amount to maintain his contract in full force and effect from the date of the lapse to August 1, 1920, by virtue of the provisions of section 305 of the act (44 Stat. 799 38 USCA § 516).

Appellee filed a plea to the declaration, setting up the defense of res judicata.

Appellant demurred. On the hearing the demurrer was overruled. Appellant elected to stand upon the demurrer, and judgment was entered for appellee.

From that judgment this appeal was taken. The record contains a stipulation, from which it appears that appellant had instituted suit on February 4, 1927, against the United States in the District of Columbia Supreme Court, in which recovery was sought on the same contract which is the subject of suit in the instant case. In the first suit, total permanent disability was alleged as existing from April 5, 1919, and such disability, it was contended, had been continuous from that date to the time the original suit was filed. A verdict in that suit was rendered against appellant, and judgment entered. On appeal to this court, the judgment was affirmed January 6, 1930. 59 App. D. C. 197, 37 F. (2d) 824.

On this appeal appellant assigns error in the action of the court below in holding the judgment in the former suit a bar to recovery in this.

The United States raises the further question of limitations in the institution of the suit.

We shall notice this latter point first.

Section 19 of the World War Veterans' Act of 1924, as amended, provides in part as follows: "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 approval of this amendatory Act July 3, 1930, whichever is the later date: * * * Provided, That for the purposes of this section it shall be deemed that the right accrued on the happening of the contingency on which the claim is founded: 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."

Appellant did not commence this suit until October 6, 1931, which was more than six years after the right accrued and more than one year after July 3, 1930, the date of approval of the amendatory act. The suit, therefore, was barred unless the limitation was suspended for three months and three days by reason of the filing in the Bureau of the claim sued on. The declaration does not show when claim was filed in the Bureau nor how long thereafter it was denied by the director, but it does show that it was filed in accordance with the provisions of law and was subsequently refused.

The position of the United States is that section 19 is a statute of limitation on suits and that appellant's failure to show compliance with its provisions is jurisdictional, and that this court, notwithstanding the question was not raised below, should itself arrest the proceeding and dismiss the appeal. The argument is not without force, for it has been frequently decided that, although the general rule is that a statute of limitation must be pleaded, in the case of the government the fact that the suit was timely brought must affirmatively appear in the pleadings or in the evidence. In Finn v. United States, 123 U. S. 227, page 232, 8 S. Ct. 82, 85, 31 L. Ed. 128, the Supreme Court said: "The duty of the court, under such circumstances, whether limitation was pleaded or not, was to dismiss the petition; for the statute, in our opinion, makes it a condition or qualification of the right to a judgment against the United States. * * *" But that case, as well as most other similar cases on this subject, was instituted under the provisions of a statute, or statutes, which did not contain the proviso found in section 19 of the World War Veterans' Act of 1924, and so it is obvious that here, if appellant had alleged in his declaration that the period elapsing between the filing of claim in the Bureau and its denial was three months and three days or more, the suit would have been timely. In this view, the question we have to decide is whether failure so to allege is such a fatal defect as to compel a dismissal of the appeal, or an affirmance of the judgment, where the point was not raised or considered by the trial court. The identical question was decided by the Court of Appeals for the Fourth Circuit as recently as January 8, 1935, in United States v. Ellison, Administratrix, 74 F.(2d) 864, 869. There Judge Parker said:

"In addition to this, we think that, if the government intended to rely on the statute of limitations, it should have raised the question in the court below. Where the statute provides, as does this, that the running of limitations is to be suspended during certain contingencies which can be shown on the trial if the question of limitations is raised, common fairness demands that, if the government intends to rely upon limitations, it should raise the question there or be precluded from raising it. Such a question is like that of disagreement between the claimant and the Bureau, which is also jurisdictional; and as to it the Eighth Circuit has held, and we think properly, that it cannot be raised for the first time in the appellate court. U. S. v. Kiles (C. C. A. 8th) 70 F.(2d) 880, 881.

"It is true that the institution of the suit within the time permitted by statute, like the showing of disagreement with the Bureau, is a condition precedent to the exercising of jurisdiction by the court. But where the court has general jurisdiction of the parties and the subject-matter, and jurisdiction of the particular cause is dependent upon the existence of facts which, if they are disputed, can probably be easily proven, such a point is waived by failure to raise it by timely objection in the trial court. U. S. v. Edwards (C. C. A. 8th) 23 F. (2d) 477, 480; 15 C. J. 845. As said by Judge Gardner in the Kiles Case, supra, `a total...