Weaver v. United States, 3679.
| Decision Date | 28 June 1934 |
| Docket Number | No. 3679.,3679. |
| Parties | WEAVER v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fourth Circuit |
J. M. Broughton, of Raleigh, N. C. (W. H. Sawyer, of Raleigh, N. C., on the brief), for appellant.
Young M. Smith, of Washington, D. C., Atty., Department of Justice (J. O. Carr, U. S. Atty., of Wilmington, N. C., Will G. Beardslee, Director, Bureau War Risk Litigation, of Washington, D. C., and William B. Snow, Sp. Asst. to Atty. Gen. in War Risk Insurance Cases, on the brief), for the United States.
Before NORTHCOTT and SOPER, Circuit Judges, and CHESNUT, District Judge.
This suit on a war risk insurance policy was instituted in the District Court on September 29, 1932. The Government pleaded the statute of limitations applicable to the suit contained in USC, title 38, § 445, as amended July 3, 1930 (38 USCA § 445), which reads 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 July 3, 1930, whichever is the later date: * * * 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."
The case was, in effect, submitted to the District Judge for determination on an agreed statement of facts from which it appears that the plaintiff, after applying for and receiving the policy sued on, was honorably discharged from the Army on March 11, 1919, and the policy lapsed thereafter on April 1, 1919, by reason of nonpayment of further premiums. In his complaint the plaintiff alleges that he became totally and permanently disabled within the meaning of the provision therefor in his policy prior to its lapse and that his disability has continued to the present time, but he apparently took no steps to secure the benefits of the policy until on July 2, 1931, some time before midnight, he sent by mail from Raleigh, N. C., a claim to the Veterans' Bureau for benefits. There was no evidence or finding as to the exact time when this claim was filed in the Veterans' Bureau other than appears from the official stamp thereon reading "Received July 6, 1931." The claim was thereafter rejected by the Bureau on the merits and under date of September 22, 1932, a letter was mailed to the plaintiff from the Bureau denying liability on the policy. This letter was not received by the plaintiff until September 26, 1932, immediately after which he consulted his attorney and thereafter filed this suit on September 29, 1932.
On these facts the District Judge ruled as a matter of law that the suit was barred under the statute above quoted, and the correctness of this ruling is the only question presented for our consideration.
In our opinion the ruling appealed from was correct. Obviously under the statute, the suit was too late unless saved by the proviso in the section. The effect of this proviso is that the statute of limitations was suspended for the number of days, prior to and including July 3, 1931, that the claim was pending in the Bureau and the plaintiff was entitled to bring suit within that number of days after notice of disallowance of his claim by the Bureau. That this is the effect of the statute has been held by the Circuit Courts of Appeals for the 10th Circuit (United States v. Gower, 71 F.(2d) 366, decided May 31, 1934; Roberts v. United States, 66 F.(2d) 273), and for the 8th Circuit (Stallman v. United States, 67 F.(2d) 675); and by the District Courts in New Hampshire (Hunnewell v. United States, 2 F. Supp. 389); in Idaho (under the similar wording of the Act May 29, 1928, c. 875, 45 Stat. 964; Carson v. United States, 37 F.(2d) 946); in Virginia (Creasy v. United States, 4 F. Supp. 175), and in Maryland (Hipkins v. United States, 1 F. Supp. 505). We are in accord with this construction and application of the statute.
It does not sufficiently appear from the established facts...
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