MILLER v. UNITED STATES
No. 7068
Circuit Court of Appeals, Seventh Circuit
July 17, 1940
267
3. We find necessary only brief comment on the other contentions advanced. The supposed proof that the buyer ratified the arrangement for on-deck stowage is not convincing. Knowledge was not brought home to the libelant before the ship sailed; only the shipper knew, and he appears to have done nothing except to write libelant a letter delivered in America long after the damage was done. But after all, he had stepped out of the picture and was perhaps well advised in so doing. That libelant affected insurance when it received the shipper‘s letter on March 17, 1937, and did not seek to disaffirm its purchase, can have no bearing here; the bills had already been presented, and libelant‘s responsibility to the holders fixed. Cf. Hansson v. Hamel & Horley, [1922] 2 A. C. 36, 46; Harper v. Hochstim, 2 Cir., 278 F. 102, 103, 20 A.L.R. 1232. And though it is claimed that the ship‘s liability in a suit in rem is measured by the contract of her master, and not by an antecedent agreement with third persons, not the agents of the ship, yet the Idefjord, by accepting the cargo for carriage with knowledge of the clean through bills, made the issuer of those bills its agent. It could not then accept the goods under its own conditions, and it was bound in rem for right delivery. The Sprott, D. C. S. D. N. Y., 70 F. 327; The Poznan, D. C. S. D. N. Y., 276 F. 418.
The decree is reversed, with directions to the district court to enter a decree in favor of libelant, and to proceed to assess the damages, by reference or otherwise as it shall determine.
Before he resigned Judge PATTERSON heard the argument of this appeal, and voted at the conference to reverse the judgment. Since his resignation he has read this opinion and authorizes us to say that it accords with his views.
Eugene Bland, of Shelbyville, Ind., and Stephen A. Cross, of Chicago, Ill., for appellant.
Arthur Roe, U. S. Atty., of Vandalia, Ill., Carl W. Feickert, Asst. U. S. Atty., of East St. Louis, Ill., William M. Lytle, Atty., Department of Justice, of Chicago, Ill., Julius C. Martin, Wilbur Pickett, and Fendall Marbury, all of Washington, D. C., for appellee.
EVANS, Circuit Judge.
This is an appeal by a veteran of the World War from a judgment denying him any recovery under the “automatic” war risk insurance provision of the U. S. statute (
Plaintiff did not take out war risk insurance, but he was found by the trial court (jury waived), to have become permanently and totally disabled within the 120 day provision of the statute. His disabilities were goitre, heart trouble, etc., and he was discharged from service on a doctor‘s certificate stating that he was no longer physically fit for military duty. The Government has paid the veteran $19,000 in disability compensation payments up to the time of suit.
The trial court first entered judgment permitting recovery for a limited period and later, after a notice of appeal had been filed, entered a second judgment wherein recovery was denied, and the action dismissed.
Two questions confront us:
(1) Did the District Court have jurisdiction to vacate its final judgment for the plaintiff, after a notice of an appeal therefrom had been taken, and enter another final judgment for defendant?
(2) Is the July 3, 1930 amendment (
The facts: Plaintiff enlisted in July, 1917, and was discharged December 20, 1917. He filed a claim on June 10, 1931, upon which “notice of disagreement” was sent him, November 9, 1932. He began this action, November 14, 1932.
No question of total and permanent disability is here involved. The evidence is not even before us. The issue is whether the cause of action is governed by the 1928 or 1930 statute of limitations. Sec. 19, Act of June 7, 1924,
The District Court first concluded, October 29, 1938, that a judgment should go to the veteran for monthly claims accruing within the six years preceding the filing of his claim, but not for the entire period from 1917. Defendant filed a notice of appeal from this judgment, on February 3, 1939; a stipulation as to contents of record was filed, as was a statement of points, on February 11, and on March 6, a motion and stipulation were filed in the District Court for an order extending the time to file the record in the Circuit Court of Appeals for a period of fifty days from March 15, which motion was granted.
On April 11 the Government petitioned for a rehearing in the District Court and filed a motion to vacate the findings and conclusions, on the ground that the Towery case (Towery v. United States, 7 Cir., 97 F.2d 906) relied on by the trial court in its memorandum, had been reversed by the Supreme Court. 306 U.S. 324, 59 S.Ct. 522, 83 L.Ed. 678. The trial court granted this motion over plaintiff‘s objections, which did not include any want of jurisdiction on the part of the District Court to vacate a judgment which was pending in this court on appeal.
On April 25 the court vacated the judgment in plaintiff‘s favor and entered one for the defendant. It dismissed plaintiff‘s action. In doing so it relied on the Towery decision, United States v. Towery, 306 U.S. 324, 59 S.Ct. 522, 83 L.Ed. 678.
On May 5, the trial court granted defendant‘s motion to dismiss its appeal from the first judgment pending in this court. On July 21, plaintiff filed his notice of appeal from the second judgment.
Jurisdiction. (a) The new
(b) The new
Our conclusions are: (a) The District Court has no authority to vacate a judgment by it entered in an action at law after an appeal from said judgment has been taken.* (b) The District Court has no authority to dismiss an appeal which has been taken from its judgment.
Applicability of Statute of Limitations (Act of July 3, 1930) to “Automatic” Insurance. While unnecessary to the disposition of this appeal, we will consider, in order to avoid future litigation, the effect of this statute on plaintiff‘s rights.
Automatic insurance was created by Sec. 401 of the War Risk Insurance Act,
“* * * Any person in the active service on or after the sixth day of April, nineteen hundred and seventeen, who, while in such service and before the expiration of one hundred and twenty days from and after such publication, 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 insurance, payable to such person during his life in monthly installments of $25 each.”
An Act of 1917 (
This section was amended May 29, 1928, and a time limitation for the commencement of actions was attached. This section reads:
“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 * * *. No State or other statute of limitations shall be applicable to suits filed under this section.”
This section was amended July 3, 1930 (
“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. * * *”
Precisely stated, did this last amendment apply to “automatic” insurance?
Our conclusion that it did not, is based on (a) three decisions of Courts of Appeal: United States v. Preece, 10 Cir., 85 F.2d 952; United States v. Pastell, 4 Cir., 91 F.2d 575, 112 A.L.R. 1125; United States v. Oliver, 6 Cir., 86 F.2d 1018. (b) The express provision of the amendment which makes it applicable to
The judgment of the District Court from which this appeal is taken (the second judgment) must be reversed. The order vacating the first judgment is of no efficacy. The appeal of defendant from the first judgment is still pending but it is not before us at this time. The District Court‘s order dismissing the appeal from the first judgment is of no force or effect.
The judgment of the District Court is reversed.
TREANOR, Circuit Judge (dissenting).
I believe that the language “yearly renewable term insurance” of the 1930 amendment of the
By the terms of the original provision “Any person in the active service on or after the sixth day of April, nineteen hundred and seventeen, who, while in such service and before the expiration of one hundred and twenty days from and after such publication, 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 insurance, payable to such person during his life in monthly installments of $25 each.”
There is no justification for considering the disability or death payments as gratuities as distinguished from payments of insurance benefits under insurance which had been granted upon formal application. As already indicated, the Government, as a special concession to those who might suffer total and permanent disability or death before the lapse of a reasonable time within which to apply for insurance, waived formal application and the obligation to pay the few dollars of premiums which would have accrued prior to the occurrence of permanent and total disability or death. But when the event happened which by terms of the Act of Congress created the insurer-insured relationship between the United States Government and the soldier, the insurance thus given legal existence was in all respects an obligation of the Government the same as its obligation under any other war risk insurance. In short, the one to whom “automatic insurance” was granted had, for all practical and legal purposes, a contract of insurance which was as binding upon the Government as the contract of insurance of the soldier who had applied for and had been formerly granted insurance. If he recovered from his total and permanent disability he would not be entitled to have payments continued and it is not reasonable to assume that Congress intended that in case of recovery from total and permanent disability the insurance would become void. His insurance would continue in force with the same rights and obligations as the insurance of any other soldier who had recovered from total and permanent disability.
The legislative history of the War Risk Insurance Act indicates that Congress in
Congress reenacted in an amendment of 1921 (section 404, as amended,
I see no reason for assuming that one who, without formal application, had been granted insurance by reason of the happening of total and permanent disability, is excluded from the foregoing provisions. The language reveals no such intention. Here again is a clear indication by Congress that all insurance was war risk insurance of the type of term insurance, renewable yearly, until such insurance should be converted in accordance with law, or lapsed for failure to convert.
By amendment of May 29, 1928, a statutory limitation to actions on claims for insurance was provided. By the terms of the Act, as amended, claims were referred to as claims “under a contract of insurance between the bureau and any beneficiary or beneficiaries thereunder.”
No. 7158.
Circuit Court of Appeals, Seventh Circuit.
July 15, 1940.