Skovgaard v. United States

202 F.2d 363, 92 U.S. App. D.C. 70, 1953 U.S. App. LEXIS 3236

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 5, 1953
• Docket: 11327
• Status: Published

Opinions

EDGERTON, Circuit Judge.

Appellant’s amended complaint alleges that Harvey Skovgaard, a partly disabled Navy Veteran, on January 29, 1947 applied for a $9000 National Service Life Insurance policy and tendered the premium; that the Veterans’ Administration failed or refused to issue the policy; and that under the National Service Life Insurance Act as amended Skovgaard “was automatically granted * * * [a] policy, although in fact said policy was never delivered to him.” The complaint does not allege that the Veterans’ Administration accepted the premium or promised to issue the policy. Skovgaard died, and appellant brought this suit to recover the amount of the insurance he had applied for. At the conclusion of appellant’s evidence the District Court directed the jury to return a verdict for the United States.

The National Service Life Insurance Act as amended, 38 U.S.C.A. §§ 801 et seq., 54 Stat. 1008 et seq., provides in § 817, 54 Stat. 1014, as amended, 60 Stat. 788-789, that “In the event of disagreement as to any claim arising under this chapter, suit may be brought in the same manner and subject to the same conditions and limitations as are applicable to the United States Government life (converted) insurance under the provisions of sections 445 and 551 of this title.” Section 551 has no bearing on this case. 38 U.S.C.A. § 445, 46 Stat. 992 as amended, provides that “In the event of disagreement as to claim, including claim for refund of premiums, under a contract of insurance between the Veterans’ Administration and any person or persons claiming thereunder an action on the claim may be brought against the United States * * (Emphasis added.)

The statement in the complaint that Skov-gaard “was automatically granted” a policy is not a statement of fact. It is a conclusion of law, and an erroneous one. The facts that are alleged in the complaint do not indicate that a contract of insurance was entered into. They indicate the contrary. The point is not merely that no policy was issued. The point is that the Veterans’ Administration did nothing that showed an intent to contract. The complaint therefore does not state a “claim * * * under a contract of insurance”. It states, at most, a claim that the Veterans’ Administration ought to have entered into a contract of insurance. Since the United States has not consented to be sued on such a claim, we think the complaint should have been dismissed for lack of jurisdiction.

The United States was the only defendant and is the only appellee. There is therefore no occasion to consider whether, when, or by whom a suit against a government official to require him to enter into a contract of insurance might have been maintained.

Remanded with directions to dismiss the complaint.