United States v. Journey
This text of 82 F.2d 772 (United States v. Journey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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Journey brought this action to recover on a term policy of War Risk Insurance. Trial by jury was waived by a written stipulation.
At the close of the evidence, counsel for the United States moved for judgment, first, on the ground that there was no disagreement, and second, there was no substantial evidence establishing that Journey was totally and permanently disabled on or before September 1, 1919, and that his policy lapsed on that date for non-payment of premiums.
The trial court overruled the motion and entered judgment for Journey.
In McLaughlin v. United States (C.C.A.10) 74 F.(2d) 506, at page 507, the Court said:
“War risk insurance policies are contractual obligations of the government, yet they confer no right of action on the insured or his beneficiary independently of the sovereign will. The rule that the United States may not be sued without its consent is all embracing. Lynch v. United States, 292 U.S. 571, 581, 54 S.Ct. 840, 78 L.Ed. 1434; United States v. Earwood (C.C.A.5) 71 F.(2d) 507. One of the conditions upon which this consent has been granted, is the existence of a disagreement, and such disagreement is a jurisdictional prerequisite.”
Statutes enacted prior to July 3, 1930, made disagreement a condition precedent to suit, but did not define the term disagreement. See McLaughlin v. United States, supra. Section 4 of the Act of July 3, 1930, 46 Stat. 992 (see 38 U.S.C.A. § 445) defined the terms “claim” and “disagreement” as follows:
“The term ‘claim,’ as used in this section, means any writing which alleges permanent and total disability at a time when the contract of insurance was in force, or which uses words showing an intention to claim insurance benefits, and the term ‘disagreement’ means a denial of the claim by the director or someone acting in his name on an appeal to the director. This section, as amended, with the exception of this paragraph, shall apply to all suits now pending against the United States under the provisions of the War Risk Insurance Act, as amended, or this chapter.”
The resolution of January 28, 1935, 38 U.S.C.A. § 445c, in part reads as follows:
“A denial of a claim for insurance by the Administrator of Veterans’ Affairs or any employee or agency of the Veterans’ Administration heretofore or hereafter designated therefor by the Administrator shall constitute a disagreement for the purposes of section 445 of this title. This section is made effective as of July 3, 1930, and shall apply to all suits pending on January 28, 1935, against the United States [773]*773under the provisions of section 445 of this title.”
It clarified the definition of “disagreement” hut left the definition of a “claim” unchanged.
The court in McLaughlin v. United States, supra, held that “Congress by excluding from the definitions of ‘claim’ and ‘disagreement’ all pending suits, intended, under the maxim expressio unius est exclusio alterius, that such definitions should apply to all suits thereafter filed.” See, also, Chavez v. United States (C.C.A.10) 74 F.(2d) 508; United States v. Earwood (C.C.A.5) 71 F.(2d) 507.
The original complaint in this case was filed on September 29, 1930. It follows that the claim relied on here, must come within the definition of claim set out in the Act of July 3, 1930, supra. In other words, it must be in writing and must allege permanent and total disability at a time when the contract was in force/ or use words showing an intention to claim insurance benefits.
On or about August 1, 1919, Journey made out a claim on form 526, a copy of which is set out in note 1.1
It will he noted that question (11) and the answer thereto reads as follows:
[774]*774“Nature and extent of disability claimed Pains in chest and under shoulder, left, General weakness. ‘All-in’ feeling, all time, 50%.”
When Journey stated his disability was fifty per cent., he clearly negatived an intention to claim insurance benefits, since to have been entitled thereto, he would had to have been totally and permanently disabled. Kemp v. United States (C.C.A.7) 77 F.(2d) 213; Ross v. United States (C.C.A.7) 77 F.(2d) 212.
[775]*775Furthermore, the evidence disclosed that the Bureau of War Risk Insurance treated it as a claim for compensation solely and at no time passed upon or denied it as a claim for insurance benefits.
Journey testified that he wrote a letter to the Veterans’ Bureau in 1930 in which he stated he felt himself “entitled to war risk insurance.” Neither the letter nor a copy thereof was introduced in evidence and there was no proof that it was ever passed upon or denied by the “Administrator of Veterans’ Affairs or any employee or agency of the Veterans’ Administration * * * designated therefor by the Administrator.”
We conclude that Journey failed to establish a disagreement.
The judgment is reversed with instructions to grant the United States a new trial.
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82 F.2d 772, 1936 U.S. App. LEXIS 3110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-journey-ca10-1936.