# Respondent Supplemental Brief — United States v. Atkinson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0321%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondent Supplemental Brief - **Published:** January 1, 1936 - **Citation:** 297 U.S. 157 ## Text _ FILE. COPY ormep Ef | | JAN 8 1936 OCTOBER TERM, 1935 ~~ . No. 265 THE UNITED STATES OF AMERICA, Petitioner, US. RAY KEITH ATKINSON, ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. SUPPLEMENTAL BRIEF ON BEHALF OF . RESPONDENT. / Warren KE. Miter, Southern Building, ‘ | Washington, D. C., i Counsel for Respondent. A. H. Cutwe tt, JoHn M. WorreE.u, R. A. D. Morton, ‘El Paso, Texas. Pera ae ae \ ‘9 ‘ Bg ae OT ET Nl RRND an eA INDEX. SuBsecr INDEX. Page EEE CONV ONNG TUK o0 4500 d08 oe bON eh he 664405 eon beds chews cad 1 NE UE. So cc seceectccussscevenecettceedescevectecesses 3 I MP IIIS ds nak ss 0deeseu ms bdeede duce dyaccncceseck. 3 ME 05 660055050 540:9.0:00 54-0005 OO KO Ke ad 4 nak sd Whakdecucekvenwe 4 (a) The Statute, Regulations and the Legislative‘ approval by subsequent enactments of law by the National Congress clearly shows that this clause is valid and binding upos We I 04.5 6.00.0'05 0.40 445000080 belo ekceuciiuces 4 (b) Petitioner is attenmpting to “contest” the insurance contract sued upon which is specifically forbidden by law and the express provisions of said contract; and. such action also. violates the 5th amendment to the Constitution........... 14 (2) The Circuit Court of Appeals was correct in holding that this Court in the case of Miller vs. United States, 294 ; U. S. 435 was not applicable to the case ................. 18 PONE cose ee enensens tariseesunnerensaseneewidinewsnieduyeedl 22 APPENDIX. Letter from Honorable Frank T. Hines, Administrator of Veterans’ Affairs, dated January 6, 1936, regarding dividends paid on United States Government Life Insurance ........ nes $4644 wee os 8410 gabe 23 © Cases CITED. Hahn v. United States, 107 U.S. 402......... 0. ccc cece ccc ccc ccccee 10 Hurni Packing Co. v. Mutual Life Insurance Company, 263 U. S. 167, es a ee ae 15 Lynch vy. United States, 292 U. S. 571, 78 L. Ed. 1439 peeeeiss seesaw 8,18 Miller v.' United States, 294 U. S. 485...0.. 00.0.0 cece cc cccccucccee 2, 4,18 Mutual Reserve Fund Association v Austin, 142 Fed. 398........... 15 National Lead Company vs. United States, 252 U. S. 140............ 12 New York, New Haven & Hartford Railroad Company v. Interstate Commerce Commission, 200 U. S. 361 .......... 0c cece cc ccccecece 11 Northwestern Mutual Life Insurance aw v. Johnson, 254 U. 8. i i. it ccccdseuluesd seanada Sidenawedeéoeseseéonesscce 17 Ritter v. Insurance Company, 169 U. 8. 139 seeecooccéooers Seccecose ,17 Sinking Fund Cases, 99 U. 8. 700, 719, 25 L. Ed. 496, 501............. 18 eee Se Ge UL, OP UL, Oh OU, cc cccnccecoceccccesceccstoosees 10 United States v. The Alabama Great Southern Railroad Company, 142 RARE im ARSE SEIS Ae ap, Lean ee Ra 10 White v. United States, 270 U. S. 175, 70 b. Ed. 530................- S Whitefield v. Insurance Company, 205 U. S. 489...........00ceeceee 17 Wilbur National Bank y. United States, 79 L.-Ed. 402........... Sees s —7281-C : INDEX STATUTES AND REGULATIONS. Public No. 47,.67th Congress, 42 Stat. 147, 148, Section 404 Public No. 90, 65th Congress, 40 Stat. 398, 399, Section 13 Public 242, 68th Congress, 43 Stat. 607, 38 U. S. Code 193 et seq., Public No. 242, 68th Congress, 43 Stat. 607, 38 * 8S. C. A. 193, et seq., Section 301 Public No. 448, 69th Congress, 44 Stat. 790 Public No. 522, 7ist Congress, 46 Stat. 991, amending Section 5 of the Act of June 7, 1924 Public 522, 71st Congress, 46 Stat. 991, Section 307, World War Vet- erans’ Act as amended by Section 24 Section 512, U. S. Code Anndtated .... Section 3122, Regulations of the Veterans’ Administration Title 38 U. S. C. A., Paragraph 512 MISCELLANEOUS. Report of Administrator of Veterans’ Affairs for 1934 Paragraph 11 of United States Government Life (converted) Insur- WS GUIS ks koncincintentsevevesiveions Sivawsc ake s ceuakewens SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1935 No. 265 THE UNITED STATES OF AMERICA, Petitioner, V3. RAY KEITH ATKINSON. ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. SUPPLEMENTAL BRIEF ON BEHALF OF | RESPONDENT. Statement. From a jury verdict finding respondent permanently and totally disabled from December 1, 1932 (R. 7), because of the permanent loss of hearing of both ears while his con- tract of United States Government (converted) Insurance’ was in full force and effect, petitioner appealed to the Cir- cuit Court of Appeals for the Fifth Circuit (R. 91-102) in 9 ae assigning as error the following instruction (R. 94-95) of the trial court (italics supplied) : ‘VIII. The court erred in instructing the jury as | follows: | ‘And in Clause (a) of said Paragraph 11 of the policy, as relating to total and permanent disability, it is provided as follows: ‘Without prejudice to any other cause of disability, the permanent loss of the use of both feet, or both hands, or of both eyes, or of one foot and one hand, or of one foot and one eye, or of » one hand ‘and one eye, or the loss of hearing of both ears, or becoming permanently helpless or permanently bedridden, shall be: deemed to be total permanent dis- ability ;.and monthly installments for any of these spe- cifically ‘enumerated causes of total permanent dis- ability, and any premiums paid after the date of such total permanent disability shall be refunded without interest.’ ’ : ‘Therefore, gentlemen of the jury, you are instructe by the Court as a matter of law that, by the terms and provisions of said life insurance policy issued by the defendant, United States of América, to the plaintiff, Ray Keith Atkinson, it is provided that in the event. the insured, the plaintiff herein, sustained loss of the hearing of both ears, the same constitutes total and permanent disability under the terms and provisions of said War Risk Insurance Policy’ .’’ The Circuit Court of Appeals affirmed the judgment be- low, holding that the provisions of Paragraph 11(a) of the. contract sued upon was valid, coming within the authority conferred by law and that the decision of this Court in the Miller v. United States, 294 U. S. 435, affirming the decision of the Fifth Circuit Court of Appeals in that case (71. F’. (2d) 361), was inapplicable. Questions Presented. 1. The United States, in the instant case, contends that ‘there is no authority in law for including in contracts of United States Government Life (converted) Insurance against total permanent disability, the following clause . contained in said contracts: | ‘‘the permanent loss of hearing of both ears * * * shall be deemed to be total permanent disability.’’ 2. The United States, in the instant case, contends that the action taken by the District Court and the United States Cireuit Court of Appeals for the Fifth Circuit was contrary to the decision of this Cour. in Miller v. United States, 294 U. S. 435. Summary of Argument. 1. PerITIONER’S ATTEMPT TO ESCAPE LIABILITY UPON THE GROUND THAT THERE WAS NO AUTHORITY OF LAW FOR INCLUDING In contracts oF Unitep States GOVERNMENT LIFE (con- VERTED) INSURANCE AGAINST TOTAL AND. PERMANENT DISABILITY THE PROVISION SET FORTH IN THE CONTRACT HEREIN SUED UPON THAT ‘*THE PERMANENT LOSS OF HEARING OF BOTH EARS * * * SHALL BE DEEMED TO BE TOTAL AND PERMANENT DISABILITY’ IS UNTENABLE BECAUSE— (a). THE STATUTE, REGULATIONS, AND THE LEGISLATIVE AP- PROVAL BY SUBSEQUENT ENACTMENTS OF LAW BY THE NaTIONAL CoNGRESS CLEARLY SHOWS THAT THIS CLAUSE IS VALID AND BINDING UPON THE RESPONDENT. (b) Perrrioner 1s ATTEMPTING TO ‘‘conTEST’’ THE INSUR- ANCE CONTRACT SUED UPON WHICH IS SPECIFICALLY FORBIDDEN BY LAW AND THE EXPRESS PROVISIONS OF BAID CONTRACT, AND SUCH ACTION ALSO VIOLATES THE STH AMENDMENT TO THE CONSTITUTION. 4 2. Tue Circuit Court or APPEALS WAS CORRECT IN HOLDING THAT THE DECISION OF THIS:CouURT IN THE CASE OF Miller y. United States, 294 U. S. 435, was NoT APPLICABLE TO THIS CASE. os ARGUMENT. (a) The statute, regulations, and the legislative approval ‘by subsequent enactments of law by the National Congress clearly shows that this clause is valid: and oe upon the respondent. ail Respondent (and some six — thousand other citi- zens up to the close of the fiscal year 1934) obtained from the United States and paid premiums upon contracts of United States Government Life (converted) Insurance’ containing clauses similar to that which the United States is attacking in this suit*. Premiums are being paid today upon hundreds of thousands of these contracts by World War Veterans for the protection covered by the express terms thereof,.including the protection which the United States in the present suit seeks to renounce and avoid lia- . bility upon by declaring this provision of its solemn writ- ten contract to be a nullity. | : ‘ The contract herein sued upon provides (R. 19-20) (italics supplied) : ‘“Total visscinaadaled disability.—11. Total per manent disability as referred to herein is any impairment of ‘mind or body which continuously renders it impossible for the disabled person to follow any substantially gainful occupation, and which is founded upon condi- a Benork of Administrator of Veterans’ Affairs for 1934, p. 29. 2 See history of these os contalaedt in brief of Veter ans’ Administration filed in this Court in the case of Miller v. United States (No. 342 October Term, 1934) pp. 12-21. D tions which render it reasonably certain that the total disability will continue throughout the life of the dis- abled person.. The total permanent disability benefits may relate back to a date not exceeding six months prior to receipt of due proof of such total permanent disability, and any premiums paid after receipt of due proof of total permanent disability, and within the six months shall be refunded without interest. _ (a) Without prejudice to any other cause of dis- ability, the permanent loss.gf the use of both feet, or both hands, or of both eyes, or\pf, one foot and@.one hand, or of one foot’‘and one eye, orf one hand and one eye, or the loss of hearing of both ears, or becoming perma- nently helpless. or permanently bedridden, shall be deemed to be tota} permanent disability ; and monthly in- stallments for any .of/ these specifically enumerated causes of total permanent disability shall accrue from the date of such total permanent disability, and any premiums paid after the date of such total permanent — disability shall be refunded without interest.’’ The foregoing provision in this contract is based upon Section 3122 of the Regulations of the United States Veter- ans’ Administration duly issued by the A istrator of Veterans’ Affairs, which provides: ‘63199, Without prejudice to any other cause ‘of dis- - ability, the permanent loss of the use of both feet,-or both hands, or-both eyes, or of one foot and one hand, or of one foot and one eye, or of one hand and one eye, or of the loss of hearing of both ears, or the organic loss of speech, or becoming permanently helpless or — permanently bedridden, shall be deemed to be total per- manent disability under United States. Government life insurance; and monthly installments of insurance for any of these specifically enumerated cases of total per- manent disability shall accrue from the date of such total permanent disability, and any premiums paid after the date of such total permanent disability shall be refunded without interest.’’ 2n 6 The authority for the foregoing provisions of the insur- ance contract and the above quoted Regulation is found in - Title 38, U. S. C. A., Paragraph 512, which provides. (italics supplied) : | ‘*Not later than July 2, 1926, all term insurance shall be converted * * * into such forms of insurance as may be prescribed by regulations and as the insured may request. Regulations shall provide for the right te convert into ordinary-life, twenty-payment life, en- dowment maturing at age- sixty-two, five-year level premium term, and into other usual forms of insurance, * * * in accordance with regulations to be issued by . the director, * * * Proyisions for maturity at cer- tain ages, for continuous installments during the life of the insured or beneficiaries, or both, for refund of pre- miums, cash, loan, paid up and extended values, divi- dends from gains and savings, and such other provi- sions for the protection and advantage of and for alter- native benefits'to the insured and the beneficiaries as may be found to be reasonable and practicable, may be provided for in the contract of insurance, or from time to time by regwations. The Circuit Court of Appeals (R. 105), like the District Court, held the provisions of the insurance contract sued _ "upon now contested by the Goveramenit comes clearly within - the foregoing authorization. 2, head submit it does. The insurance which was the subject of congressional legislation from 1914 until 1933 was a contract created and existing between the insurer and the insured with respect to the ‘‘coverage’’ or subject matter of the insurance con- tract. ‘‘Total permanent disability’’ had a fairly well de-° fined and understood meaning not only by reason of general use of the term but also because of judicial construction _ thereof in’ sundry cases decided prior to the World War. As a general rule and particularly if the insured is suffering . from some affliction within the body, the term is more or less flexible. Certain conditions, however, so generally incapac- 7 itate those. suffering therefrom that reasonable men did ‘not and do not differ on the question of whether such condi- tions in fact produce ‘‘total permanent disability.’’ If it should be conceded that occasionally some very exceptional person, with exceptional mental endowment and exceptional economic opportunity, may .possibly producé some income notwithstanding he is totally blind or has lost both legs or . ao ‘one arm and one eye, or has suffered some of the other afflictions indicated in the specific loss provisions of the con- tract, nevertheless we are dealing with a practical and not a theoretical or abstract problem. Congress in express terms gave the person charged with the administration of the War Risk Insurance Act authority to make— “‘such other provisions for the protection and advan- ~ tage of and for alternative benefits to the insured and the beneficiaries as may be found to be reasonable and practicable, may be provided for in the contract of in- _ surance, or from time to time in the regulations.’’ (Title 38, U.'S. C. A., Paragraph 512.) ‘It will thus be seen that Congress intended for these con- tracts to be practicable or practical as well as reasonable; and it is submitted that this ‘‘specific loss’’ provision which the Government is now aiainaaes is both reasonable and practical. - Further, even though the contract itself did not include the so called ‘‘specific loss’’ provision, as it does, the ad- ministrative officials could properly adjudicate claims upon the standards indicated by the regulations. : Some standard for the guidance of the subordinates actu- ally doing the rating was and is indispensable. In the last _ analysis the enumeration of these, specific losses, so called, is nothing more’ nor less than laying down a rule of meas-. urément found by experience to be substantially accurate. That it is incorporated.in the contract, in.the Regulations 8 or in certain internal instructions or general orders, is a detail of no importance so far as the principle involved is concerned. ‘ ‘ ‘The World War Veterans’ Act approved June 7, 1924 (Public No. 242—68th Congress, 43 Stat. 607, 38 U.S. C. A. 193, et seq.), provided in Section 301 that all term insurance shall be converted not later than July 3, 1927 into such— ‘‘form or forms of insurance as may be prescribed by regulations and as the insured may request.’’ It is apparent, therefore, that there is ample statutory. authority for the issuance of Section 3122 of the Regula- tions, United States Veterans’ Administration, which pre- scribes certain ‘‘provisions for the protection and advan- tage of and for alternative benefits to the insured. * * *” 38 U. §. C. A., Paragraph 512. — said by this Court in the case of Wilbur National Ban United States in decision rendered February 4, 1935, 79 L. Ed.-402 at page 405: ‘‘The statutes and regulations which govern the War Risk Insurance Bureau we must assume are known to those who deal with it.’’ As was said by this Court in the case of Lyneh v. United States, 292 U. S. 571 (78 L. Ed. 1434, at page 1439)— ‘In order to promote efficiency in administration and justice in the distribution of War Risk Insurance benefits, the Administration was given power to ‘pre- scribe the form of policies and to make regulations. The form prescribed provided that the policy should be subject to all amendments to the original Act, to all regulations then in force or thereafter adopted. ” The regulations issued by: the Director are apart of the contract of insurance under the expressed terms thereof (White v. U. S.,270 U.S. 175, 70 L. Ed. 530) and these regu- 9 is lations which are a part .of the contract are as binding on the Government as they are upon the veteran. Lynch v. U. S., supra. The clause in question here was printed on the face of the contract sued on, and was there when the contract was issued to Atkinson, who paid his premiums on the faith of it. So did several hundred thousand others pay their money on the faith of the contract offered-them. Many of the six hundred. thousand citizens carrying in- surance policies of this character cannot now procure in- surance in private corporations because, relying upon the provisions of their government contracts, being no longer insurable risks, they could not now obtain other insurance. It is respectfully submitted that af petitioner’s. conterition is the law of this case, many citizens who have been paying premiums on their contracts for the past fifteen years or more in the confidence which they have had in the promise of their Government will suffer. No private insurance company could possibly hope -to repudiate a portion of its contract, as the Government is here attempting. Such at- tempt, therefore, should not be allowed to succeed unless the law clearly and imperatively requires that result. It clearly does not require, and I insist, does not permit such a dishonest result. I respectfully submit that, under the settled rule of law, continued administrative interpretations of statutes will be respected and enforced. For the past several years the administrative interpretation has been that the regulations, and provistons of the contract which the Government is now attempting to avoid, have been recognized as valid. This interpretation it is respectfully submitted was cor- rect. a ’ But even if it were believed that the construction of -the various statutes by the several officials primarily charged with the duty of construing and administering them over a j period of years was erroneous, such construction having - ‘ 10 been uniformly given by these various administrative offi- cials and having been applied i in hundreds of thousands of cases and incorporated in over half a million contracts now outstanding and in force, it is well settled law that such construction will be adhered to and adopted by the — Court, as has been held in many cases. A few citations will suffice. In the case of Hahn v. United States, 107 U. S. 402, the ‘Appellant sought to recover a share in certain fines and. forfeitures accruing at the Port of New York and his right thereto turned primarily upon the proper construction of a _ statute enacted in 1867. Under the construction thereof which had been adopted and followed by the Treasury De- partment, he was not entitled to participate in such fines, ete. This Court approved the reasoning and conclusions of the Court of Claims which emphasized the fact that Con- ‘gress * ‘‘had not interfrered with such constructions by the ‘Secretary of the Treasury while the Act was in force.” This: was in accord with the case of United States v. Pugh, 99 U. S. 265, wherein this Court 1 in the course of its opinion observed— ‘‘In the case of a doubtful and ambiguous law the con- temporaneous construction of those who have been called upon to carry it into effect, is entitled to gr eat respect.’’ In United States v. The Alabama Great Southern Rail- road Company, 142 U. S. 615, the controversy involved the proper construction of a'statute relating to concession in the price for transporting mails where the carrier had received land grants from the Government. The Post Office Department had construed the statute in a certain manner, which construction was followed from 1876 to 1886 by three 11 Postmasters General. Then a new Postmaster General sought to change the construction and this Court denied his right so to do and held in favor of the carrier. In the course of the opinion (page 621), it is said (italics sup- . plied) : ‘We think the contemporaneous construction: thus given by the executive department of the government, and continued for nine years through six different ad- ministrations of that Department; a construction which though inconsistent with the literalism of the Act, certainly consorts with the equities of the case; should be considered as decisive in this suit. It is a set- tled doctrine of this Court that in case of ambiguity, the judicial department will lean in favor of a construc- tion given to a'statute by the department charged with the execution of such statute, and, if such construc- tion be ACPTED UPON FOR A NUMBER.OF YEARS, will look with disfavor upon any sudden change, whereby parties who have contracted with the govern- ment upon the faith of such construction may be prej- udived. *:* * "’ In New York, New Haven & Hartford Ratlroad Company v. Interstate Commerce Commission, 200 U. S. 361 (at 401), this Court clearly indicated that notwithstanding the fact that it might disagree with the construction of the statute in certain particulars, nevertheless, since the rulings had been made by such Commission during ‘‘the many years which have followed those decisions, we concede that the interpretation given by the Commission in those cases to _ the ‘Act to Regulate Commerce’ is now binding, and, as restricted to the precise conditions which were passed on in the cases referred to, must be applied to all strictly identical cases in the future; * - * We make this con- cession because we think we are constrained to so do, in consequence of the familiar rule that a construction made 12 by the body charged with the enforcement of a statute, which construction has long obtained in practical execu- tion, AND HAS BEEN IMPLIEDLY SANCTIONED BY THE REENACT- MENT OF THE STATUTE WITHOUT ALTERATION IN THE PARTICU- LARS CONSTRUED, when not plainly erroneous, must be treated as read into the statute’’ (page 402). In National Lead Company v. United States, 252 U. S. 140, this Court again recognized the binding effect of the administrative construction of a statute extending over a substantial period of time. | _ Section 13 of the Act of October 6, 1917 (Public No. 90— 65th Congress) 40 Stat. 398 provided that the director of the Bureau of War Risk Insurance under the general direction of the Secretary of the Treasury should ‘‘administer, exe- cute, and enforce the provisions of this Act and for that purpose shall have full power and authority to make rules and regulations not inconsistent with the provisions of this Act necessary OR APPROPRIATE to carry out-its PURPOSES, and shall decide all questions arising under the Act, * * *. The director shall adopt reasonable and proper rules to govern the procedure * * * to regulate.and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to estab- lish the right to * * * InsuRANcE provided for in this act; * * * andthe manner and form of adjudications and . awards.’’ (40 Stat. 399.) With some changes in verbiage this is still the law. Pursuant to such. auth8rity the administrative officers did determine the detailed f€rms of the contracts and among other things provided that any of the enumerated specific losses should constitute a loss insured against by the con- * tract. - . Atihough Congress has legislated on the subject fre- quently during the past fourteen years, there has been no statute indicating any dissatisfaction of the Congress with 13 the terms of said contracts so promulgated by the-Adminis- trator pursuant to the directions contained in the statutes. There has been no narrowing of the language quoted in any of the thousands of contracts of insurance subsequently issued. Hundreds of claims have been. asserted under such contracts, and undoubtedly many are being paid pursuant. to administrative determination or in accordance with jadg- ments obtained in the Courts for the ‘‘specific losses’’ set forth in these contracts. These veterans, som@ of whom were wounded in hostilities have been paid benefits in good faith by the proper administrative officials. .If the Govern- ment’s contention prevails in this case undoubtedly efforts will be made to collect from these seriously disabled veter- . ans the sums heretofore paid them over a period of years pursuant to adjudications by the administrative officials of the Government causing gross injustice and mischievous results. | ‘ Congtess has legislated time and again upon this subject without disturbing or changing in any way this long con- tinued administrative construction. - I respectfully submit that by reason of the legislative history of this matter, Congress, many members of which are World War veterans _ and undoubtedly hold similar contracts, has approved and adopted and in effect directly authorized the language. in dispute with reference to this ‘*specific loss’’ provision. Public No. 47,-67th Congress approved August 9, 1921 _ (42 Stat. 147), created the Veterans’ Bureau transferring _ the duties conferred by the law then being administered by _ the Bureau of War Risk Insurance to the Veterans’ Bureau : (42 Stat. 148). Section 404 of this Act relating to the con- _ version of the term insurance theretofore written ‘‘into such form or forms of insurance as may be prescribed by . regulations and, as. the insured may request.’’ That was long after the administrative practice in question was well established and it is. respectfully submitted that Congress 14 by this Act expressly approved the existing practice, the ‘*specific loss’’ provision having become a part of the con- tract and this approval by Congress had the effect of-ex- tending legislative sanction thereto. Section 300 of the Wérld War Veterans’ Act approved Jiine 7, 1924 (Public No. 942—68th) Congress, 43 Stat. 607, 38 U.S. Code 193 et seq.) relates to insurance and is in sub- stantially the same language as the ged acts, so far as this question is concerned. , Section 301 provides that all term insurance shall be con- verted not later than July 2, 1927, into such ‘‘ form or forms * of insurance as may be prescribed by regulations and as the insured may request.”’ Public No. 448 of the 69th Congress, approved July 2, 1926 (44 Stat. 790), amended the World War Veterans’ Act in several respects but Section 300 in which is described the disability insured against uses the same words as used throughout viz: ‘‘total permanent disability.’’ Again Congress approved the practice. which had been in existence for years and it must be borne in mind that the World War Veterans’ Act of 1924 followed extensive hear- ings and investigations on the entire subject of veterans’ relief and veterans’ insurance and that Act in effect was a codification of what Congress deemed appropriate after a completa,overhauling of all existing legislation on the subject of World War veterans. This is significant, and negatives the thought that there may have béen any over- | sight by the Congress in connection with the present sub- ject. (b) Petitioner is wnine. to “contest”? the insurance contract sued upon which is specifically forbidden by law and the express provisions of said contract, and such action also violates the 5th Amendment of the Constitution. The insurance contract provided that respondent’s dis- abilities were, totally and permanently disabling. Peti- 15 tioner’s.attack upon the specific provision of contract, it is respectfully submitted, amounts to a ‘‘contest’’ of this contract, which is precluded by statute. Section 307 of the World War Veterans’ Act, as amended by Section 24 of Public 522, approved July 3, 1930 (46 Stat. 991) provides: . ‘*All contracts or policies of insurance HERETOFORE OR HEREAFTER issued, reinstated, or converted, sHALL BE INCONTESTABLE FROM THE DATE OF ISSUANCE, reinstate- ment, or conversion, except for fraud, nonpayment of premiums, or on the ground that the applicant was not a member of the military or naval forces * * * this section shall be deemed to be effective as of April 6, 1917, and APPLICABLE FROM THAT/DATE to ALL con- trdets or policies of insurance.’’ Formerly Section 307 provided that the itsurance should be incontestable ‘‘after the insurance has been in force six months from the date of issuance or reinstatement _* © *,** and also that a letter mailed by the Bureau should constitute a contest. This latter provision undoubtedly was incorporated to meet the decision of this Court in Hurni Packing Company v. Mutual Life Insurance Com- pany, 263 U. 8. 167; 68 L. Ed. 235. It was therein held that the contest must be initiated within the period pro- vided in the policy, notwithstanding that death occurred | prior to the expiration of such period. But said provision for a letter of contest was eliminated when Section 307 was amended in 1930, as indicated above. As far as I can discover there is only one decision in the United States directly in point presumably because the conclusion therein indicated is:so manifestly correct that _ counsel for private insurance companies never thought it worthwhile to litigate the question.. I refer to Mutual Re- serve Fund Life Association v. Austin, decided by the Cir- _cuit Court of Appeals for the First Circuit in December, 1905, 142 Fed. 398. Suit w: 3 brought to recover the face “ ‘ amount of a life insurance contract which contained this provision: of . ‘ This is in response ‘to. your request to be aiivieed the amount paid as dividends a -Bnited States Government ; Life. Insurance Policies. According to the records of the Fine Sorte of the Veterans’ Administration, the amounts paid as dividends - on such policies: by calendar years (eleven months in 1935 - to November 30) and enmulatively. tn Navamhar 90 1095 vy S38 UV UE UV, aJ0U, are as. allows: . \ Dividends paid Accumulated amount , during year dividends paid to December 31. indicated. Pr . date indicated. 1920-21 ...... + 993,706.92 $ 993,706.92 BE ieee cease 1,631,103.46 . 2,624,810.38 1923 ...:.... 2,056,213.06 - 4,681,023.44 1924... . 2,585,215.87 — ; 7,266,239.31 1925 ..&.... 2,795,372.73 sie 10,061,612.04 ee AS: ' 3 ‘086, 678.49 | ae 13,148,290.53 1907 ...04... 3,846,772.86 ae 16,995,063.39 Se ea 5,958,383.94 . 22 953, ‘447. 33 ME oad eaters 6,033,216.41 : oe '986, 663.74 a i ck 6,903,625.19 35,890,288.93 ere 7,738.296.83 43,628,585.76 © Eee 7 ;270,066.72 50,898,652.48 «ee 3,420,603°09 i 54,319,255.57 Ss seer 5,944, 589. ) | 60,263,845.09 1935 (11 Mo.) 5, 865, 033.01 . sera 66,128 ihaat Very truly yours, : oe i, Frank T. Hrvzs, f~ ar: | : Administrator. (1281-0) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0321%3A6. Public record. Not legal advice.