14161_1 | 5th Cir. | Mar 2, 1953
Lead Opinion
Upon an agreed statement of facts, the court below denied appellants’ right to recover the proceeds of a National Service Life Insurance policy of gratuitous insurance automatically granted to Jimmie B. Anderson while in the armed forces.
The controversy is bottomed on these facts: Jimmie B. Anderson while in the military service of the United States became totally disabled in the line of duty on January 28, 1942, and was admitted to the army hospital at Ft. Mills, Philippine
Disposition of the cause depends upon our interpretation of the National Service Life Insurance Act of 1940, as amended, 38 U.S.C.A. § 801 et seq., which in pertinent part provides:
Section 802(d) (3) (A) : “Any person in the active service who on or after October 8, 1940, and prior to April 20, 1942, becomes totally disabled as a result of injury or disease incurred in line of duty and such disability continues without interruption for a period of six months or until death intervening prior to the end of such six months’ period without having in force at time of incurrence of such disability at least $5,000 insurance issued under the War Risk Insurance Act, as amended, or the World War Veterans’ Act 1924, as amended, or this chapter, shall be deemed to have applied for and to have been granted, effective as of the commencement of such total disability, national service life insurance in an amount which together with any such insurance then in force shall aggregate $5,000 and such gratuitous insurance shall continue in force without payment of premiums until six months after the insured ceases to be totally disabled or until one year after September 30, 1944, whichever is the earlier date: Provided, That such protection shall cease and terminate unless within such period such disabled person shall make application in writing for continuance of all or any part of such insurance and shall submit evidence satisfactory to the Administrator of entitlement to waiver of premiums under subsection (n) of this section or tender the premiums thereafter becoming due: Provided further, That waiver of premiums under subsection (n) of this section shall not be denied under this subsection on the ground that total disability commenced prior to the effective date of such insurance: * *
The narrow question presented is whether a policy of gratuitous insurance automatically granted under this section remains in force during the total disability-of the insured if, as here, the insured fails to make an application in writing for continuance of the insurance prior to September 30, 1945, as required by the statute.
The appellant claims that the veteran was under no duty to make application in writing for continuance of the gratuitous insurance in force because the insured was totally disabled and entitled to waiver of premiums. In addition, appellant contends that under the provision of Title 38 U.S. C.A. § 802(n), insurance benefits in the amount of $5,000 are due appellant on account of her having filed on June 30, 1947, with the Veterans Administration a claim
In subsection 4 of the original amendment
Section 802 (n) which permits the policy to remain in force by waiver of premiums under certain conditions therein ■specified has no pertinency here. It applies only to the usual policy kept in force under premium-paying conditions. Section 802(n) ■specifically provides that the disability must have commenced “(2) while the insurance was in force under premium-paying conditions”. It has no application to gratuitous insurance which does not require payment of premiums.
The plain terms of the statute compel the conclusion that the gratuitous insurance of Jimmie B. Anderson ceased and terminated on September 30, 1945, and as the insured lost his right to file for waiver of premiums after that date so also did the beneficiary lose that right. Scott v. United States, 5 Cir., 189 F.2d 863" court="5th Cir." date_filed="1951-06-25" href="https://app.midpage.ai/document/scott-v-united-states-227363?utm_source=webapp" opinion_id="227363">189 F.2d 863; United States v. Baker, 10 Cir., 191 F.2d 1004" court="10th Cir." date_filed="1951-10-09" href="https://app.midpage.ai/document/united-states-v-baker-227975?utm_source=webapp" opinion_id="227975">191 F.2d 1004.
The judgment of the district court was right and it is affirmed.
. Public Law 360, 77th Congress, 38 U.S.C.A. § 802(d) (4).
Dissenting Opinion
(dissenting).
Anderson, while a member of the armed forces, became totally disabled on January 28, 1942 and remained continuously so disabled until his death on July 11, 1946. From May 6, 1942 to September 12, 1945 he was a prisoner of the Japanese. On July 11, 1942 and again on September 30, 1944, while Anderson was such a prisoner, Congress amended the provision under which he had been granted automatic gratuitous life insurance so as to require a written application for the continuance of the insurance, 56 Stat. 657 and 58 Stat. 762. As last amended the statute reads as quoted in the Court’s opinion, 38 U.S.C.A. § 802(d)(3) (A). The Court now holds that, within eighteen days after he was liberated from the Japanese prison and before he could be evacuated to a hospital in the United States, Anderson must have become acquainted with all of his legal rights, including the changes enacted by Congress while he was in prison, and must have forwarded an application in writing for the continuance of his insurance to which admittedly he would have been entitled without further payment of premiums.
Of course, if the law requires such a harsh ruling, there is nothing to be said except to express our regrets. Usually, however, the law is not so unreasonable, and I do not think that it is so in this instance when all of the pertinent statutes are read together. Section 802(d) (3) (A) providing for the automatic gratuitous insurance refers in two places to the waiver
Rehearing denied; RIVES, Circuit Judge, dissenting.