United States ex rel. Norris v. Forbes

278 F. 331, 51 App. D.C. 248, 1922 U.S. App. LEXIS 2740

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 6, 1922
• Docket: No. 3702
• Status: Published

Opinion

SMYTH, Chief Justice.

Relator filed a petition against the Director of the Bureau of War Risk Insurance and the Secretary of the Treasury in which he asked for a mandamus directing them to pay to him, as the foster father of one William Ricketts, a soldier, who died as the result of wounds received in line of duty during the late war, $10,-000, the amount of insurance on the life of Ricketts called for by a contract made in accordance with the Act of Congress of October 6, 1917, as amended July 11, 1918 (Comp. St. 1918, Comp. St. Ami. Supp. 1919, §§ 514k~514vv) and, December 24, 1919, c.‘ 16, 41 Stat. 371. A rule to show cause went out, and the defendants made a return thereto. Relator demurred to the return. The demurrer was overruled, and, the relator having elected to stand on it, the rule was discharged and the petition dismissed. Relator appeals.

The soldier, at the time of his death, was a resident of Maryland. The relator is also a resident of that state. He claims that he received Ricketts into his family when the latter was but four years old and raised him as his own child; that during his whole life he stood in loco parentis to him. Ricketts, because of the condition of the law at the time, so it is alleged, made his estate his beneficiary in tire contract of insurance. After the death of Ricketts Congress, by the act of December 24, 1919, amended the War Risk Insurance Act so as to provide that the term “father” in the statute should include a father by adoption “and persons who have stood in loco parentis .to a member of the military *. * * forces,” etc. Relator claims that under this amendment he is entitled to the insurance. Defendants deny it. A disagreement exists, therefore, between the .defendants, representing the Bureau of War Risk Insurance, and the person claiming to be the beneficiary under the policy.

[1] By the Act of May 20, 1918, § 1 (40 Stat. 555; Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 514kk), it is provided:

“That in the event of disagreement as to a claim under the contract of insurance between the bureau and any beneficiary or beneficiaries thereunder an action on the claim may be brought against the United States in the District Court of the United States in and for the district in which such beneficiaries or any one of them resides. * * * ”

Relator cannot deny that he is a beneficiary, for that is the basis on which he asks relief; consequently, the statute applies'. It is a familiar rule, which the courts apply, that where a statute provides a remedy, it is exclusive. Dimmick v. Delaware, Lackawanna, etc., Railroad Co., 180 Pa. 468, 36 Atl. 866; Curran v. Delano, 235 Pa. 478, 84 Atl. 452; Janney v. Buell, 55 Ala. 408; State of North Dakota ex rel. William Lemke v. Chicago, etc., Ry. Co., 257 U. S. -, 42 Sup. Ct. 170, 66 L. Ed. -.

[ST] Moreover, the debtor under the contract of insurance is the United States, which cannot be sued without its consent. Stanley v. Schwalby, 162 U. S. 255, 16 Sup. Ct. 754, 40 L. Ed. 960; United States v. McLemore, 4 How. 286, 11 L. Ed. 977; The Davis, 10 Wall. 15, 19 L. Ed. 875. And when it consents .it can prescribe the terms upon which it may be sued. Nichols v. United States, 7 Wall. 122, 19 L. Ed. 125; United States v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171; Finn v. United States, 123 U. S. 227, 8 Sup. Ct. 82, 31 L. Ed. 128. With respect to the contract he're involved it has given its consent to be ■sued and named the court in which the action may be brought. The inevitable conclusion is that relator’s only remedy lies in an action against the United States in the District Court of the United States for the district in which he resides.

The judgment of the lower court is affirmed, the costs to be assessed against the appellant.

Affirmed.