Petition for a Writ of Certiorari — Miller v. United States

MAY 3 194]

CHARLES ELMORE -CROPLEY

SUPREME COURT OF THE UNITED STATES as

OCTOBER TERM, 1940

Bane ~~

No.1 01 v4

CHARLES W. MILLER,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

Warren E. Mier,

Washington, D. C.;

StepHen A. Cross,

Chicago, Illinois;

Evernet Buanp,

Shelbyville, Illinois;

Attorneys for Petitioner.

INDEX.

Sussect Inpex.

SOND NE SE ey contre ow peared

pS er are ere pen poe oe rare a

I INE <r eee a eae oie

SPE SII os ss ee ea ae oe eee ee

SII 95 os ec rch e too ae ae beara eee

Specifications of error to be urged ................

Reasons for granting the writ ....................

Pe eke Ea os Sees Pe a ee

CN ee aa cet ee ees

CrraTIONS.

Cases:

Anderson v. United States (C. C. A. 9), 36 F. (2d) 45

Baille v. United States, 70 F. (2d) 527, at page 529..

Blair v. City of Chicago, 201 U. 8. 400, 475, 26 S. Ct.

ME OD Fas oss os Be a ee

Caprio v. United States (C. C. A. 1), 45 F. (2d) 520..

Crooks v. Harrelson, 282 U.S. 55,60 ...............

Cumberland Telephone & Tel. Co. v. City of M emphis

(O. (. 0 6) 0 2 Ae a ee ees

Jackson v. United States (D. C. 1928), 24 F. (2d) 981,

| Haein ret RE eet een crag Lee ERR AAD aah AR bam Oe

Jacob Crvik v. United States ...........4.0.2.0 00:

Jones v. New York Guaranty, etc., Co., 101 U. 8. 353,

18 8.06 366, 48 ts OS. Fie oe eee

Kerr v. United States (C. C. A. 9), 61 F. (2d) 800...

Layton v. United States (C. C. A. 8), 78 F. (2d) 499. .

McNally et al. v. United States (C. C. A. 8), 52 F. (2d)

BO Ge EE 5 5 ee kok ee ea Ee ee

Pennsylwania Co. v. U. S., 236 U.S. 351, 362, 35 8. Ct.

S10 OP ha ee Oe has ioe AS SOS

Ross v. Doe, 1 Pet. 665, 7 L. Hd. 302 ...............

Russell v. State, 161 Ind. 481, 482, 68 N. FE. 1019 ....

Stanley v. United States (D. C.), 23 F. (2d) 870, 871.

Twenty Per Cent Cases, 13 Wall. 568, 20 L. Ed. 707. .

United States v. Carlson (C. C. A. 9), 44 F. (2d) 5....

—4126

—

~

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a3

=

ONNAOD DO we

_

a

il INDEX

Page

United States v. Coa (C. C. A. 5), 24 F. (2d) 944 .. 18

United States v. Clarence P. Arzner, 287 U.S. 470 .. 19

United States v. Grigg (C. C. A. 9, 1928), 24 F. (2d)

Rs as re a os ea hada ow 8

United States v. Jackson, 302 U. S. 628, 82 L. Ed. 488 12, 14

United States v. La France, 282 U. S. 576, 51 S. Ct.

ee oS Foes oe ete eae st 7,10

United States v. Law (C. C. A.), 299 Fed. 61........ 18

United States v. LePage (C. C. A. 1), 59 F. (2d) 165... 19

United States v. Missouri Pacific R. Co., 278 U.S. 269,

ee ee er ae tebe dees oye as 10

United States v. Padelford, 9 Wall. 531, 19 L. Ed. 788 19

United States v. Phillips (C. C. A. 8), 44 F. (2d) 689,

ue Cia eka be nes oe 19

United States v. Sligh (C. C. A. 9, 1928), 24 F. (2d)

Re es he una rs 8

United States v. Southern Pac. R. Co., 184 U.S. 49, 22

ee eS eres eee ee 19

Westling v. United States (C. C. A. 9, 1933), 64 F.

Meanie e shag wen 4s VKSaN OP yes 2 12

Statutes and Miscellaneous :

Act of February 12, 1918 (40 Stat. 436, Chap. 17)... 9

Act of June 7, 1924, ce. 320, 43 Stat. 607 (38 U.S. C. A.,

ea peer cere re: hy eee neers 2, 3,8

Act of May 29, 1928, ec. 875, 45 Stat. 964 ............ 8, 12

See. 19, World War Veterans’ Act 1924, as amended

July 3, 1930, c. 849, 46 Stat. 991, 992 (38 U.S. C. A.,

We as is ce nt 2, 9,13

Sec. 401 of the War Risk Insurance Act, amended

Dee. 24, 1919, c. 16, 41 Stat. 371, 374, 875 ......... 2

Sec. 404, War Risk Insurance Act, as amended Aug.

OS SE: COR BOE. cc i ee

Sec. 404, Act approved June 29, 1936 (Public 844, 74th

Congress), 38 U. S. C. A. 445(d), ¢. 867, 49 Stat.

i a eh ee ee oe ee 4,5

Veterans’ Regulation No. 8, Promulgated Mar. 31,

NE is eg Soa ae Oe A DEN Ve 14

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1940

No.

CHARLES W. MILLER,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

To the Honorable, the Supreme Court of the United States:

The petitioner prays that a writ of certiorari issue to

review the judgment of the United States Cireuit Court of

Appeals for the Seventh Circuit entered in the above case

on December 20, 1940 (R. 42). Petition for rehearing was

denied on February 3, 1941 (R. 43).

Opinions Below.

The United States Circuit Court of Appeals (R. 38-41)

dismissed this action upon the ground that claim was barred

by the statute of limitations, the majority of the court

1b

9

below adopting the obiter stated in its previous opinion

in this litigation, which previous opinion is reported in

114 F. (2d) 267. Circuit Judge Trenor wrote a dissenting

opinion based upon the grounds stated in his dissent, also

reported in 114 F. (2d) 267.

Jurisdiction.

The judgment of the Circuit Court of Appeals was en-

tered (R. 42) December 20, 1940, and on February 3, 1941

¢R. 43) the Cirenit Court of Appeals denied petition for

rehearing. The jurisdiction of this Court is invoked under

Section 240(a) of the Judicial Code, as amended by the

Act of February 13, 1925.

Question Presented.

The question here presented is whether the Cireuit Court

of Appeals erred in so construing the Act of Congress

approved July 3, 1930, c. 849, 46 Stat. 991, 992 (38 U.S. C. A.

Par. 445) which amended Section 19 of the Act of Congress

of June 7, 1924, e. 320, 43 Stat. 607 (38 U. S. C. A. Par.

445) as requiring the dismissal of this suit by reason of

the statute of limitations.

Statutes Involved.

Section 401 of the War Risk Insurance Act as amended

December 24, 1919, c. 16, 41 Stat. 371, 374-375, provides

in part:

‘* Any person in the active service on or after the 6th

day of April, 1917, and before the 11th day of Novem-

ber, 1918, who, while in such service, and before the ex-

piration of one hundred and twenty days after en-

trance into or employment in the active service, be-

comes or has become totally and permanently disabled,

or dies or has died, without having applied for in-

i eee

3

surance, shall be deemed to have applied for and to

have been granted insurance, payable to such person

during his life in monthly installments of $25 each;

and any person inducted into the service by a local

draft board after the 6th day of April 1917, and before

the 11th day of November 1918, who, while in such

service, and before being accepted and enrolled for

active military or naval service, becomes or has become

totally and permanently disabled, or dies or has died,

without having applied for insurance, shall be deemed

to have applied for and to have been granted in-

surance, payable to such person during his life in

monthly installments of $25 each. If he shall die either

before he shall have received any of such monthly in-

stallments or before he shall have received two hun-

dred and forty of such monthly installments, then $25

per month shall be paid to his widow from the time of

his death and during her widowhood; or if there is

no widow surviving him, then to his child or children;

or if there is no child serviving him, then to his mother;

or if there be no mother surviving him, then to his

father, if and while they survive him: Provinep, How-

EVER, That no more than two hundred and forty of

such monthly installments, including those received

by such person during his total and permanent dis-

ability, shall be so paid. The amount of the monthly

installments shall be apportioned between children as

may be provided by regulations: * * *.’’

The War Risk Insurance Act was repealed by Sections

600 and 601 of the World War Veterans’ Act, June 7, 1924,

ce. 320, 43 Stat. 607, 629-630. But all accrued rights and

liabilities under the former Act were saved by Section 602 of

the latter, which provided:

‘*The repeal of the several Acts as provided in sec-

tions 600 and 601 hereof shall not affect any act done

or any right or liability accrued, or any suit commenced

before the said repeal, but all such rights and liabili-

ties under said Acts shall continue and may be en-

2b

+

forced in the same manner as if said repeal had not

hoon made: * °° *.”

Section 19 of the World War Veterans’ Act, 1924, as

amended July 3, 1930, provides:

‘‘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 the date of approval of this amendatory

Act, whichever is the later date, and no suit on United

States Government life (converted) 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.’”” * * *

Section 404 of the War Risk Insurance Act as amended

August 9, 1921 (42 Stat. 155), provides:

‘‘During the period of the war and thereafter until

converted the insurance shall be term insurance for

successive terms of one year each.’”?’ * * *

Section 404 of the Act approved June 29, 1936 (Public

844 74th Congress), 38 USCA 445 (d), ¢. 867-49 Stat. 2034

provides :

‘‘That in addition to the suspension of the limitation

for the period elapsing between the filing in the Vet-

erans’ Administration of the claim under a contract

of insurance and the denial thereof by the Administra-

tor of Veterans’ Affairs or someone acting in his name,

the claimant shall have ninety days from the date of

the mailing of notice of such denial within which to

file suit. This Act is made effective as of July 3, 1930,

and shall apply to all suits now pending against the

United States under the provisions of section 19,

World War Veterans’ Act, 1924 as amended; and any

suit which has been dismissed solely on the ground

that the period for filing suit has elapsed but where

5

in the extension of the period for filing suit as pre-

scribed herein would have permitted such suit to have

been heard and determined may be reinstated within

ninety days from the date of enactment of this Act:

Provivep, That on and after the date of enactment of

this Act, notice of denial of the claim under a contract

of insurance by the Administrator of Veterans’ Affairs

or someone acting in his name shall be by registered

mail directed to the claimant’s last address of record:

Provipep Furtuer, That the term ‘denial of the claim’

means the denial of the claim after consideration of

its merits.’’

Statement.

The question here presented is whether, under a correct

construction of Section 19, World War Veterans’ Act, 1924

as amended July 3, 1930, this suit is barred by the statute

of limitations.

The facts pertinent to the question of limitations as set

forth in a stipulation (R. 32) are (1) petitioner filed with

the United States Veterans’ Administration a claim for

insurance on June 11, 1931; (2) claim was denied Novem-

ber 8, 1932; (3) letter of notification of such denial was

dispatched to him on November 9, 1932; (4) this lawsuit

was filed five days thereafter.

If this suit were for war risk insurance benefits, it clearly

would not be barred by the statute of limitations, as ninety

days is allowed to file suit after notice of denial is mailed

by the United States Veterans’ Administration (Section

404, Act approved June 29, 1936, Public 844-74th Congress,

38 U.S. OC. A. 445 (d) ¢c. 867, 49 Stat. 2034) and petitioner

would have had eighty-five more days in which to file suit

than elapsed here.

This petitioner, a disabled veteran of World War No. 1,

who enlisted in the United States Army of July 10, 1917,

and was honorably discharged therefrom on December 20,

1917, filed suit against the United States (R. 1-3) on No-

vember 14, 1932, in the United States District Court for

the Eastern District of Illinois for permanent and total

disability insurance benefits due to heart trouble, nervous-

ness, extreme weakness and exhaustion, exopthalmic goiter,

hyperthyroidism and other diseases (R. 2). The amount

claimed was $25.00 per month from December 6, 1917, to

the installment due in November, 1932, a total of $4,475.00.

The basis for this suit is found in Section 401, War Risk

Insurance Act as amended and Section 19, World War

Veterans’ Act, 1924 as amended, which statutes are set

forth herein under the heading of ‘‘Statutes Involved.”’

This case experienced what the court below described as

an ‘‘unusual’’ career (R. 39) from an appellate standpoint,

but this phase of the matter is not deemed pertinent to

the question here presented. The court below on December

20, 1940 (Cireuit Judge Trenor dissenting), in an opinion

held (R. 38-41) that this action should be dismissed be-

cause petitioner’s claim was barred by the Statute of

Limitations.

A previous obiter opinion in this case, which is reported

in 114 F. (2d) 267 was adopted (R. 41) by the court below

and used as a basis for dismissing this action. Reference

is made to 114 F. (2d) 267 for the opinion and dissenting

opinion of Judge Trenor in this case. Petitioner takes the

position here that the dissenting opinion of Cireuit Court

Judge Trenor is controlling and correctly construes the

applicable statutes.

Specifications of Error to Be Urged.

The Cireuit Court of Appeals acted contrary to and

failed to apply the rules of statutory construction recog-

nized by this and other courts:

(a) that an amendatory act, after its passage should be

read as if it had always been in the amended form.

7

(b) this being remedial legislation, it should be liberally

construed so as to give effect to the congressional intent.

Reasons for Granting the Writ.

The court below has decided an important question of

Federal law which has not been, but should be settled by

this Court and has decided a federal question in a way

probably in conflict with applicable decisions of this Court

in that it misconstrued Section 19, World War Veterans’

Act, 1924 as amended July 3, 1930, as barring petitioner’s

right to sue in that it acted contrary to and failed to apply

the rule of statutory construction that an amendatory act,

after its passage should be read as if it had always been

in the amended form, which rule has been recognized by

this Court in United States v. La France, 282 U. S. 576,

51 S. Ct. 278, 75 L. Ed. 551; Blair v. City of Chicago, 201

U. S. 400, 475, 26 S. Ct. 427, 50 L. Ed. 801; Pennsylvania

Co. v. United States, 236 U. S. 351, 362, 35 S. Ct. 370, 59

L. Ed. 616.

ARGUMENT.

Tre Court Betow Errep 1n Construine Section 19,

Worvp War Veterans’ Act, 1924 as AMENDED JuLy 3, 1930,

AS Barrine Tuts Suir.

Permission to sue the United States on claims for so-

called ‘‘automatic’’ insurance is contained in Section 19

of the World War Veterans’ Act, 1924, both as originally

enacted and as later amended. It follows therefore that

this suit, having been brought after the passage of said

act, is controlled by the provisions relative to suit con-

tained in said section as amended July 3, 1930.

Looking at the history of limitations on insurance suits

against the United States we find in the War Risk Insur-

ance Act no limitations were placed on suits on insurance.

8

Neither did Section 19 of the World War Veterans’ Act,

1924, as originally enacted, place any express limitation

on such suits.

The Act of May 29, 1928 (approved May 29, 1928), ¢. 879,

45 Stat. 964, prescribed a period of limitations for such

suits. It amended Section 19 of the World War Veterans’

Act, 1924, as amended, by adding the following:

‘‘No suit 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 from the date of the approval of

this amendatory Act, whichever is the later date: Pro-

vided, That for the purposes of this section it shall

be deemed that the right accrued on the happening of

the contingency on which the claim is founded: Pro-

vided 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. * * * No State or other statute

of limitations shall be applicable to suits filed under

this sete,

The correctness of the decision of the court below de-

pends upon the effect of the Act of July 3, 1930, c. 849, 46

Stat., 991, 992 (38 U.S. C. A. Par. 445).

The World War Veterans’ Act of June 7, 1924, ec. 320, 43

Stat. 607, 612, as amended by the Act of March 4, 1925, c.

553, 43 Stat. 1302 (38 U. S. C. A. Par. 445), contained no

provision limiting the time within which suits upon policies

of war risk insurance must be brought, and state statutes

were therefore held to be applicable. United States v.

Sligh (C. C. A. 9, 1928) 24 F. (2d) 636, 637, 638; United

States v. Grigg (C. C. A. 9, 1928) 24 F. (2d) 638, 639; also,

same case, 277 U. S. 582, 48 S. Ct. 600, 72 L. Ed. 998;

Jackson v. United States (D. C. 1928) 24 F. (2d) 981, 983;

Stanley v. United States (D. C.) 23 F. (2d) 870, 871.

9

The Act of July 3, 1930, ¢. 849, 46 Stat. 991, 992 (38 U.S.

C. A. Par. 445), also amended section 19 of the World War

Veterans’ Act of 1924, as amended, so as to read 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 the date of approval of this amendatory

Act’’ (July 3, 1930), ‘‘whichever is the later date, and

no suit on United States Government Life (converted)

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: Pro-

vided, That for the purposes of this section it shall be

deemed that the right accrued on the happening of the

contingency on which the claim is founded: 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.

* # #99

It is to be seen that in the limitations on actions under

Section 19, as revised by the Act of July 3, 1930, such ac-

tions were divided into two classe. —suits on yearly renew-

able term insurance and suits ou Government life (con-

verted) insurance—and nothing was said about suits on

automatic insurance.

Manifestly, automatic insurance is neither yearly renew-

able term insurance nor Government life (converted) in-

surance. The distinction between automatic insurance on

the one hand and yearly renewable term and converted in-

surance on the other was clearly made in the War Risk In-

surance Act, both as originally enacted and as variously

amended. Thus, the Act of February 12, 1918, which

amended Section 401 of the War Risk Insurance Act by

10

extending the time in which application for insurance might

be made, provided:

‘‘that nothing herein shall be construed to effect an

extension of the automatic insurance provided for in

the said section four hundred and one beyond the

twelfth day of February, nineteen hundred and eigh-

teen’’. (40 Stat. 436, Chap. 17.)

There is nothing in the history of the amendatory Act of

July 3, 1930 which suggests that Congress intended to

cover automatic insurance by using the terms ‘‘yearly re-

newable term insurance’’ and Government life ‘‘converted

insurance’’. Indeed, the committee reports on the bill

which became said act make no mention of automatic in-

surance, nor do they give any reason for making a distine-

tion between yearly renewable term insurance and con-

verted insurance in prescribing the limitations on suits

contained in said act.

It follows therefore that under Section 19 as amended

July 3, 1930 there is no limitation on suits on claims for

automatic insurance. Since the language of the statute is

clear, this conclusion is imperative. Crooks v. Harrelson,

282 U. S. 55, 60; United States v. Missouri Pacific R. Co.

278 U.S. 269, 277 & 278.

The court below held in effect that since Section 19 as

amended July 3, 1930, contains no limitation on suits on

automatic insurance, the limitation on such suits contained

in said section as amended May 29, 1928 should be applied.

But in doing so the Cireuit Court of Appeals violates a

well settled rule of statutory construction.

As expressed by this Court, a statute when amended is

to be read, as to all subsequent occurrences, as if it had

originally been in the amended form. United States v. La

France, 282, U. S. 568, 576. That is to say, after the amend-

ment, as to subsequent occurrences, it is as though the

11

statute had never read otherwise. Hence, the provisions of

Section 19 as they existed prior to the amendment of July

3, 1930 cannot be applied to any suit brought after July 3,

1930. In the ease of Layton v. United States (C. C. A. 8),

78 F. (2d) 499, it was held that the trial court erred in

applying the limitations on suit contained in said section as

amended May 29, 1928.

It was said in the case of Baille v. United States, 70 Fed.

(2d) 527, at page 529:

“The Act of 1930 was an amendatory act, and, after

its passage, section 19, as amended, was to be read, as

to all subsequent occurrences, as if it had always been

in the amended form. United States v. La France,

282 U. S. 568, 576, 51 S. Ct. 278, 75 L. Ed. 551; Blair v.

City of Chicago, 201 U. S. 400, 475, 26 S. Ct. 427, 50

L. Ed. 801; Pennsylvania Co. v. United States; 236

U. S. 351, 362, 35 S. Ct. 370, 59 L. Ed. 616; Kelleher v.

French (D. C.) 22 F. (2d) 341, 347; Cumberland Tele-

phone & Tel. Co. v. City of Memphis (C. C. A. 6), 200

F. 657, 660, 661; Farrell v. State, 54 N. J. Law, 421,

423, 424, 24 A. 725; Russell v. State, 161 Ind. 481, 482,

68 N. E. 1019.”’

‘*To paraphrase the language of the Supreme Court

in Grigg v. United States, supra, and Sligh v. United

States, supra, on page 583 of 277 U. S., 48 S. Ct. 600,

72 L. Ed. 998: As a result of this legislation, the de-

fense of limitations contained in the Act of 1928 is

no longer available to the United States in this case’’

* * &

If the Act of 1928 was no longer controlling in the case of

Baille v. United States, supra, it likewise should not be

controlling here and the action of the court below in holding

it to be determinative of petitioner’s right to sue was clearly

erroneous.

a

12

‘In Westling v. United States (C. C. A. 9, 1933) 64 F.

(2d) 464, the plaintiff had obtained his disagreement Feb-

ruary 11, 1929. He did not bring suit until June, 1931.

The court said relative to the amendment of 1930 (page

465 of 64 F. (2d): ‘‘Thus, in the second paragraph of sec-

tion 4, the period of limitations was extended for another

year ‘in order that’, to quote the Senate Committee report,

‘no veteran may be deprived of his right to enforce his

contract of Government insurance merely because of lapse

of time’. The same paragraph re-enacted the provisions of

the Act of May 29, 1928, chapter 875, Par. 1, 45 Stat. 964,

by which the period of limitations was suspended during the

pendency of a claim in the Bureau and an additional year

was given to renew an action which fails for ‘defect in

process, or for other reasons not affecting the merits’. Fur-

thermore, the statute, like the act of 1928, permits a new

action notwithstanding that a judgment had theretofore

been renderd against the insued, if that judgment was based

upon the defense of time limitation. The liberal policy

embodied in these provisions indicates the spirit in which

the interpretation of this legislation, at least in so far as

it affects claimants’ right to judicial review, should be

approached.’’

The Court Below Failed To Construe the Statute Liberally

So As To Afford the Relief Which Was Indicated Con-

gress Intended To Grant.

This court held in United States v. Jackson, 302 U. 8.

630:

‘(During the World War, it was the policy of the

Government to allow soldiers one hundred and twenty

days after enlistment or drafting within which to

apply for and purchase insurance. For this period,

it was intended that they be protected as though they

13

had bought government insurance. In furtherance

of this policy, Congress provided that all veterans,

who died or became totally and permanently disabled

within one hundred and twenty days after their en-

trance into active service, should be automatically

‘‘deemed to have applied for and to have been granted

insurance.’’

* * * * * * *

‘‘Section 401 did not grant yearly renewable term

insurance nor is it an enactment upon that subject.

It provided for those soldiers who died in service

before they had an opportunity to purchase yearly

renewable term insurance or any other type of insur-

ance. This law, therefore, did not pertain to yearly

renewable term insurance but to protection for sol-

diers who never had and never could obtain yearly

renewable term insurance.

‘‘It is to be remembered that automatic insurance

applied to that particular group of American soldiers

who either were killed, died, or became wholly or

permanently incapacitated before they had a reason-

able opportunity to obtain insurance of any kind.’’

We urge that because Congress did not specify any

statute of limitations for those veterans who were dis-

charged from the Army with their health completely de-

stroyed without having applied for insurance that it was

not the intention of Congress when it enacted the Act

of July 3, 1930 (46 Stat. 991) authorizing suit upon these

contracts to deprive this class of disabled veterans of

the rights enjoyed by their more fortunate comrades who

applied for insurance.

Clearly, under the facts here present, if this petitioner

had been granted a contract of war risk term insurance

this suit would not have been barred because of the statute

of limitations.

———

14

This court in United States vy. Jackson, 302 U. S. 628

82 L. Ed. 488 held:

‘*Only clear and unequivocal language would justify

a conclusion that benefits provided by a greatful gov-

ernment because of death and permanent incapacity

of its soldiers are to be held withdrawn for reasons

of economy.”’

So, here, only clear and unequivocal language would

require a construction of the statute so as to deprive the

same class of veterans mentioned by this court in the

Jackson case, of which, this petitioner is one, of the right

to maintain suit as was done by the court below here. No

such language appears in the statute, and we submit the

court below erred.

To give the construction to the Act of July 3, 1930

that was given by the court below would create a ‘‘legal

vacuum’’ which discriminates sorely against these most

unfortunate disabled veterans of World War No. 1. They

are not, under the construction placed upon this statute

by the court below, given the same right to sue as is en-

joyed by veterans who applied for insurance. It was

never the intention of Congress to deprive this class of

veterans of the right to sue; and the court below was in

error in so construing this statute.

Further, the respondent herein, by regulation, has rec-

ognized that these veterans who did not apply for insur-

ance should be treated like those who applied.

Veterans’ Regulation No. 8, promulgated March 31, 1933,

pursuant to the Economy Act, provides in part:

‘ITI, Payments under contracts of yearly renewable

term insurance (including automatic insurance) which

have matured, and under which payments have been

commenced prior to March 20, 1933, or on any judgment

heretofore rendered in a court of competent jurisdic-

tion in any suit on a contract of yearly renewable term

insurance (Including automatic insurance), or which

15

may hereafter be rendered in any such suit pending

in court on March 20, 1933, may hereafter be made.

“TV. Further payment of benefits on accounts of the

death of an insured to whom yearly renewable term

insurance (including automatic insurance) benefits

have been awarded and are being paid in accordance

with paragraphs III of this regulation shall be made in

accordance with the World War Veterans’ Act 1924

as amended, and precedents in effect thereunder.

‘*V. Except as stated above, no payments may here-

after be made under contracts of yearly renewable

term insurance (including automatic insurance) and

all pending claims or claims hereafter filed for such

benefits shall be disallowed.’’ (Italics supplied)

This court, in the Jackson case, supra held:

‘‘It may be that Congress did not believe it proper

to economize at the expense of those veterans’ who

came out of the Army with their health completely de-

stroyed or to the detriment of the soldiers who lost

their lives in service without a reasonable opportunity

to apply for insurance.’’

So, here, following the spirit of liberal construction

~enunciated by this court in the Jackson case, petitioner’s

application for a writ of certiorari should be granted in

order to correct the error of the court below in holding

this suit was barred by reason of the statute of limitations.

It was clearly the intention of Congress to place auto-

matic insurance in the same category as insurance for

which application was made.

The purpose behind said grant of automatic insurance

was to afford protection to all those in the active service

prior to the publication of the terms of the actual contract

of insurance who, of necessity, had not had the opportunity

to apply for insurance, as well as to persons who became

disabled or died within a limited period after such publi-

cation without having applied for insurance. That purpose

is well expressed in the statements of Secretary of the

a

Treasury McAdoo, who was largely responsible for the

preparation of this bill before the House Committee on

Interstate and Foreign Commerce at the hearings on H.

R. 5723, which later became the War Risk Insurance Act.’

The statements relative to the automatic insurance pro-

visions in the reports of said committee in submitting the

bill to the House show that the purpose of said provisions,

as expressed by Secretary McAdoo, was understood and

accepted by Congress.”

16

1In the report of the hearings on H. R. 5723 appears the following

colloquy (part 2, pp. 36-37) :

Mr. Sims: * * * Why should not this bill be amended so as to take

effect at a time so early that if the bill should not pass in that time it

should be retroactive to that date, so as to cover the ease of soldiers who

are already in the service and who will be in the service before this bill

is approved?

Seeretary McAdoo: I think we cover that by a provision of the bill

* * *

* * * * * * *

The Chairman: I do not see how you ean make the insurance provision

retroactive.

Secretary McAdoo: We have done something similar to that, because we

have provided that in ease of death which occurs before this bill is passed

and before the man ean have the opporunity, it would be presumed that

he took a certain amount of insurance, and the Government will take care

of that.

2 It was stated in the first report of said committee (H. R. Report No.

130, 65th Cong., Ist Sess., part 1, p. 2):

Another valuable feature of the bill is that if during the first 120 days

after the enlistment the soldier should fail to take insurance, and die, he

will be considered as insured and the benefits of such insurance will go to

his family.

The minority report on the same bill contains a similar statement (H. R.

Report 130, part 2, p. 7); and the supplemental report of said House

Committee (H. R. Report 130, part 3, p. 12) states:

Section 301. Must be applied for within 120 days after promulgation

of terms of subsequent entry into service. Any person in active service

on or after April 6, 1917, who is totally disabled or dies before expiration

of the 120 days is deemed insured for life in monthly installments of $25,

and if he dies before receiving 240 such installments, balance payable

monthly to, but only if and while there survive him, widow, child or

widowed mother.

17

The word ‘‘insurance’’ is there used in its sense of ‘‘con-

tract of insurance,’’ and the words ‘‘shall be deemed’’ are

the equivalent of ‘‘shall be conclusively presumed.’’ The

literal meaning of the whole provision, therefore, is that

each person coming within its terms shall be conclusively

presumed to have applied for and to have been granted a

contract of insurance.

In the ease of Jacob Crvik v. United States, a case in

which judgment had been obtained for the payment of

automatic insurance benefits by a District Court in 1928,

Honorable William D. Mitchell, then Solicitor General of

the United States, when the question of authorizing an ap-

peal was before him for consideration was of the opinion

that it was obvious that Congress intended those persons

receiving automatic insurance benefits to be in all respects

like those who applied for insurance, and was of the opin-

ion that they should be treated as if they had contracts.®

° OFFICE OF THE SOLICITOR GENERAL,

WasuinetTon, D. C.

17-82-30. November 1, 1928.

Memorandum for Mr. Farnum

In re Jacob Crvik v. United States.

My first intention was to authorize an appeal on the jurisdictional ques-

tion, but on going further into the file and giving further thought to the

ease I am satisfied no appeal should be taken. Whether jurisdiction exists

depends on the intention of Congress. It is perfectly obvious that Con-

gress intended those getting “automatie” insurance to be in all respects

like those who applied. They are to be treated as if they had contracts.

There can be no possible reason why Congress could have intended to deny

such persons relief in the courts.

If by any possiblity we should succeed in the litigation, we could only

expect remedial legislation to overturn the result and nothing would be

gained.

The test I apply in a ease like this is whether we could support in the

Supreme Court a decision of the Cireuit Court of Appeals in our favor.

T am satisfied we could not. I think the ease is hopeless and we will only

be unduly harassing claimants and wasting time and money to go on with it.

The United States Attorneys should be instructed in all these cases not

to claim want of jurisdiction.

(S.) Wituiam PD. MITcHELL,

Solicitor General.

a

18

The view that claims for automatic insurance are action-

able is supported by the weight of judicial precedent and

decision. In several of the reported cases involving auto-

matic insurance it appears to have been assumed, without

question, by the attorneys for the Government and the

courts, that claims for such insurance were actionable. An-

derson v. United States (C. C. A. 9), 36 F. (2d) 45; United

States v. Carlson (C. C. A. 9), 44 F. (2d) 5; Caprio v.

United States (C, C. A. 1), 45 F. (2d) 520; Kerr v. United

States (C. C. A. 9), 61 F. (2d) 800.

It will thus be seen that the government, in its long con-

tinued practice, and the several Cireuit Courts of Appeal

were in accord in treating ‘‘automatic insurance’’ as a con-

tract of insurance.

These insurance contracts are entitled to a liberal con-

struction. In the case of United States v. Cox, (C. C. A. 5)

24 F. (2d) 944, the court said:

‘‘Cases dealing with ordinary contracts of insur-

ance are generally not applicable when considering

policies of war risk insurance. <A policy of war risk

insurance is more or less a gratuity from the Govern-

ment and was so designed to be. The United States

assumed all of the extraordinary risks of war, and

issued for the minimum premium what might be termed

combined accident and life insurance policies, largely

in return for the sacrifice to be made by the men of

the United States in defense of their country. These

policies and the law generally are entitled to the most

liberal construction in favor of a soldier. United States

v. Law (C. C. A.), 299 F. 61.”’

This rule is applied to the construction of the policies

themselves.

In McNally et al. v. United States, (C. C. A. 8) 52 F. (2d)

440, at page 443, it is said:

‘‘These policies of war risk insurance are entitled to

liberal construction in favor of the soldier.’’

&

The court states in United States v. Phillips, (C. C. A. 8)

44 F’, (2) 689, at page 692:

‘In view of the policy of the law often expressed by

the courts, that these policies are to be liberally con-

strued, we resolve any doubts we have in the matter

in favor of the insured.”’

See also United States v. LePage, (C. C. A. 1) 59 F. (2d)

165; United States v. Clarence P. Arzner, 287 U. S. 470.

‘*A remedial statue must be construed liberally so as to

afford all the relief within the power of the court which

the language of the act indicates that the legislature in-

tended to grant. Ross v. Doe, 1 Pet. 665, 7 L. ed. 302;

United States v. Padelford, 9 Wall. 531, 19 L. ed. 788;

Twenty Per Cent Cases, 13 Wall. 568, 20 L. ed. 707; Jones

v. New York Guaranty, etc. Co., 101 U. S. 622, 25 L. ed. 1030;

Beley v. Naphtaly, 169 U. S. 353, 18 S. Ct. 354, 42 L. ed. 775;

United States v. Southern Pac. R. Co., 184 U. S. 49, 22 S. Ct.

285, 46 L. ed. 425.’’

It was obviously the purpose of Congress by the amend-

ment of July 3, 1930, to extend for one year the statute of

limitations on all contracts upon which the claimants had

the right to file suit. The Report of the House Commit-

tee on World War Veterans’ Legislation, March 10, 1930

(Report No. 874, 71st Congress, 2nd Session), in explaining

the amendments (p. 7) is as follows:

**(6) Extends the time for bringing suits on insur-

ance claims for one year from the date of the approval

of this amendatory act.’’

Conclusion.

Wuererore it is respectfully submitted that this Honor-

able Court should, in the evercise of its supervisory powers,

grant petitioner’s application for a writ of certiorari, and

20

upon such review the judgment of the Circuit Court of Ap-

peals for the Seventh Circuit should be vacated and re-

versed, and this case remanded to that Court with instrue-

tions to enter judgment for petitioner herein.

Warren FE. Mrwer,

SterHen A. Cross,

KuGEene Buanp,

Attorneys for Petitioner.

(4126)