United States v. Edna Willhite

Wаshington, (War- May 1, Justice, ment C. D. Atty. Burger, Gen., ren Julian E. Asst. fami- The insured was last seen his C., Atty., Goldsboro, Gaskill, N. T. U. S. ly on then at March 1944. He was Atty., Department Slade, and Samuel D. Wilson, Carolina, pass home North on brief), Justice, C., Washington, D. on prior departure to his imminent for over- appellant. duty. seas He left his home morning day presumably re- of that Cyrus Lee, (Frances Wilson, C., F. N. Virginia. Camp Henry, turn to But, Patrick Talmadge Akron, Ohio, McGovern, and L. above, no Army as stated there is evidencе ap- Wilson, brief), Narron, C., on N. unit, reported that he back to his pellee. family his heard from him DOBIE, Circuit Before SOPER indicates since that time. The evidence Judge. THOMSEN, Judges, District good that the insured was on terms family write and was his accustomed Judge. THOMSEN, District home, regularly. home On his last visit extremely appeared appeal nervous Government from he to be On this aunt, father and his and stated to his in favor of a wife, In- kill Life he not to his would on a National Servicе an action going principal questions aunt himself before overseas. His surance evidence testified that he told her —“this is sufficient whether there are They they think find that last time I will be here. a from which going May but I will send overseas died before are me insured soldier go.” lapsed, policy whether I father testified die before His when his parting year himto the six stat- that the insured’s words barred action dog, that he “to care his were take of limitations. utе expected us one of either never see George Skinner, 13, 1944, a On March again.” hand, left other when he On the ap- Army, United States soldier morning 20, he of March home Insur- plied Life National Service for a going family back was his he told $10,- policy in amount of ance the face camp and told his wife that he would designated Edna his wife 000. He new soon he learned his her as as write May Willhite, the Skinner, Edna now her a would write letter address and benеficiary, principal Appellee, as able so. as he was to do soon contingent Robert Skinner his father beneficiary. original policy course, was claim on the In due Skinner, 1, 1944, the insured’s al- made Robert and an March issued effective January 26, 1953, father, Army pay after and on estab- his lotment denied Administration the Veterans’ lished. allowing interest ac- Court erred trict claim, instituted father his against States. the United insured’s and costs March On tion. wife, gоtten divorce who had direct There remarried, since disappearance and has Indeed, death. the insured’s date of filed a and defendant as a intervened is that he evidence is no direct there against United States. the cross claim of dead, no and circumstantial stipulated was the that she has been It Fidelity as there was death such the principal under Mettler, 185 Association v. Mutual Life original plaintiff no the and that 922; 308, 662, 46 L.Ed. U.S. right recоvery. of Harvey Fidelity Casualty Co., 6 v. & 445, Relying 925; Cir., 38 U.S.C.A. Prudential Insurance 200 F. § brought Stewart, Cir., provides 286 F. that suit must be v. 9 Co. of America 321, accrued Benefit six after the v. Mutual ’“within Brownlee made”, Ass’n, Cir., United F.2d the 9 29 for which the claim & Accident Health summary judgment. rely upon Appellee, therefore, moved for had to States the That motion was denied. of death created period person of a for a of seven absence then tried before a action was yeаrs, 810, in 38 U.S.C.A. order to § Appel- jury. conclusion of the At the Ap- prove the death of the insured. But again of case and at conclusion lee’s pellee prove not had to that in- case, the the Government’s Government dead, was but also had to sured and also its motion to dismiss renewed 1944, 1,May insured died before for a directed verdict. The court moved policy lapsed. when the rulings on motions. reserved both respect time The evidence interrogatories special sub- Two were necessarily circumstantial. of death is jury: (1) Is the mitted Supreme earlier rule in Court George Skinner, (2) now deceased? Briggs, was stated in Davie Otto. v. 7 so, prior death did he come to his page 634, 628, 628, page at U.S. 97 at “yes” 1, 1944? answered 24 L.Ed. as follows: questions. both appears “If it in evidence that the returned, verdict After .the person, within seven absent Government, orally writing, and in re- years, specific encountered some its motion for verdict newed a directed peril, or within that came moved for a new trial. All of range impending some within the motions were denied the District might danger, immediate or Judge, judgment who entered reasonably expected destroy pay- Appellee recover the death benefits jury may life, infer that the court Appellee under and that able life ceased at “recover the defendant interest yeаrs.” per upon any (4%) four the rate of presently cent amounts from accrued Fidelity In the later case Mutual together Judgment, of this witF costs Mettler, Association v. Life actually incurred for witnesses and fees page 319, 22 S.Ct. at paid to the Clerk of the Court.” referring ‍‌‌‌‌‌‌‌‌​​‌​​‌‌‌‌‌‌​​​​​‌‌‌‌​​​​‌‌​‌​‌‌‌​​​‌​‌‌‌‍quotation to the above Briggs, Supreme from Davie v. appealed The Government has from Court said: urges points: three (1) thereby that the evidence “But it was not ruled that of death inference insured’s death was not insufficient to es- disappearance tablish case for the consideration under cir- arise jury; (2) that under 38 inconsistent with U.S.C.A. a con- cumstances § though Appellee’s life, expo- _ claim was even time barred tinuation jurisdic- peril particular and the District Court lacked to some sure action; shown, tion of the evidence indicat- that the Dis- when death we have found ance cases. pose statute, We have construing ous states dealing Act of was circumstantial as follows: cific of the National Service tion to commit suicide F.2d danger, the date mission to the en in the case those in the instant 2d were mitted to the of the York v. proved.” ble to may, his existence continued family Life factory death chapter, date of duced sumption of death shall be during In United States v. In ed that range to the applicable presumption “No Stаte facts, of this statute any peril Mutual essentially insured’s 1940, 38 U.S.C.A. Insurance. with for the Consideration States although although of such individual as Hamilton, of immediate establishing the individual claims for for a been referred applicable of this differ be considered though Hunter the Administrator is death, The statutes in the vari- expiration Life Insurance Co. jury. bar. court held law Government presumed; v. impending or immediate court law period has been jury purposes оf applying no period same death unexplained absence Hayman, the evidence of there similar case, construing necessarily from home and providing If and showed no statute where the death. eame within National Service of the Cir., respect approved subject. O’Brien, Cir., must danger.” was was evidence case. are to no his Life Insurance § received, the other statutes make fact such stronger propеrly sub 810, provides sufficiently dealing also many some states Section question of this to the time Cir., quality to applica- Following ease, of the different, period uniform years, evidence satis- be sub- pro- pre- insur- inten- cases pur- with than New time this sub- spe- giv F. immediately upon dence sumption death. speaking page 119. In Insurance Co. of New York v. time insurance, supra, ent statute of supra, erned e. States 42. before ly aid of other substantial evidеnce dence. sumption of death comes in absence, but presumption of seven relying in conclusion place date of death constitute rest his case he died within that mediately upon sumption ditional evidence. ^[*] ated in 335, 336: g., period “Manifestly “ “We “ founded English concluding ^[*] ‘The ‘But after law, when v. of seven contain no a case Although Cartier subject death. The various authorities- years, # judge be Hayman, agree statute invoiced in Mutuаl through Judge * * * here but not controlled statute,- presumption of seven same a sufficient adduced to rebut to be that the that policy lapsed v. U. involving absence United States death to given made with death, he is dead. upon are reviewed in solely upon years, seeks all, limitations, if one that prior show rule death, arising ” this additional evi- but the under years, S., Cir., date, law; * * * death the common-law expiration of a period, -this should court to еstablish a it petitioner to the end not content justify D.C., showing Government of rule as F.2d at Glenn, said: 62 F.2d permitted produce is manifest- but the any matter some The death took is not that death, person true date of insured died would not took this stated the ’ Hamilton, view here as to stated statutes, jury’s O’Brien, of it. applied place United; pre- cre- court, im- ad- pres- in of to pre Life gov- evi life Appellee of 38 U.S.C.A. in the construction § faces If the a dilemma. year insured died at the end of the seven period, lapsed before opinion, was suffi In-our death. he died before go jury on the cient evidence to to the his death occurred more than six question whether the insured in the case filing before the of this action or the May 1, died at bar filing of a claim which tolled the statute against Suits of limitations. only by per can maintained States argues The Government mission, prescribed manner plaintiff must fall on one of the horns of imposed. subject restrictions Appellee replies this dilemma. 36, 41, States, Munro v. United logic may whatever the be the courts have 421, 82 L.Ed. 633. With re uniformly almost held that where spect to National Service Life Insur necessary rely plaintiff for the possible by ance, suit is made Section n the fact of National Insur Service Life death, it has been held that 1940, amended, of 38 ance Act as U.S. begin does of limitations to run un- 817, provides which that: C.A. § year pe- til the of the seven disagreement “In of the event as riod. arising any claim under sub- this has cited a number The Government brought may chapter, suit construing of of cases statutes limita- subject manner and the same same Supreme in which the tions Court has and limitations are conditions leading applied a strict rule. The case applicable to United States Govern- 25, Ragan, 2 4 L. is Mclver v. Wheat. (converted) ment life insurance un- case, In that Ed. 175. Chief Justice provisions der the of 445 sections Marshall said: 551 of this title.” “* * * The difficulties under 19 of the World Section Act, ‍‌‌‌‌‌‌‌‌​​‌​​‌‌‌‌‌‌​​​​​‌‌‌‌​​​​‌‌​‌​‌‌‌​​​‌​‌‌‌‍1924, War Veterans’ labored, respect- plaintiffs which the amended, 445, 38 U.S.C.A. § trial, ed the not the institution of provides, pertinent part, in that: * * * their It has never suit. “ * * * no suit on United determined, impossi- that the been bility (converted) States Government life bringing to a case suc- insurance shall be allowed under issue, from causes of uncer- cessful this section shall unless the same though duration, created tain brought been within have six legislature, shall such take case the right the accrued for which operation of the act out Provided, claim the is made: That legislature limitations, unless purposes section it will.” 2 Wheat. shall so declare its deemed shall be ac- 29, 30, 4 L.Ed. 175. happening of con- crued City Again, Amy Watertown, in v. 130 tingency on the claim is 320, 324, page 537, 9 at U.S. S.Ct. further, Provided founded: That 538, 953, Supreme L.Ed. 32 susрended this limitation for the said: Court filing elapsing between the general rule is Veterans’ Administration of “The lan- guage prevail, sued claim the denial of the act apparent of said claim the Administrator based incon- reasons ” * * * hardship justify Affairs. can of Veterans’ venience or departure from it.” contingency on which the claim is Engineer- Pillsbury is the death of United founded the insured. also See ing Co., States, Riley Cir., 197, 223, 4 v. United 212 S.Ct. 342 U.S. 96 Towery, 225; States, United 695. Cf. McMahon v. Unitеd States v. L.Ed. 26; U.S. S.Ct. 96 L.Ed. L.Ed. 72 S.Ct. 342 U.S. Corp. v. 678. Chemical Unexcelled * ** reasoning. cape L.Ed. from this States, Having fact established passage presumptive force of the cases, However, insurance in life time, requisite nec- it became uniformly applied almost the courts have essary whether to determine rule. See annotations a different Benjamin Mr. occurred be- death of 119 A.L.R. 61 A.L.R. 686 A.L.R. of the cancella- fore or after annotation last citеd In the non-pay- tion of his certificate : said jurors in- of dues. The were ment subsequently to the decided “Cases structed, effect, unless subject on this annotations earlier plaintiff had the fact of established support uniformly the view hold or occurring prior Benjamin’s death weight great adopted au- forfeiture the date namely, thority, the fact that where rights asserted under the terms of only determined can of death certificate, their verdiсt should statutory through aid of the They favor of the defendant. be in years’ sumption from seven of death also informed that estab- were benefici- unexplained absence, presump- lishment of death ary’s does not accrue of action cause plaintiff depended tion expiration of the seven- not fix of death did following disappear- year period particular moment insured, the statute ance of the years, but established fact begin to run does not limitations during of death at some time that until time.” that gave period. These instructions to Insurance Com- The Traveler’s case jurors proper upon issues 963, Bancroft, Cir., pany 65 F.2d 10 v. to found their verdict’.” 65 680, 54 S.Ct. denied certiorari 964. F.2d 587, 103, was decided before 78 L.Ed. only directly point case on this 64, Tompkins, 304 U.S. Erie Co. v. R. involving question, an action on a Gov- 1188, applied 817, 82 L.Ed. life insurance is Howard ernment general In case federal that laws. D.C.N.D.Wash., 985, S., F.Supp. 28 v. U. the Court said: J.; Yankwich, appeal D. dismissed plea support of of the “In Cir., stipulation, 9 119 In that appellant limitations Judge case, quoted length District Harrison v. Masonic Mutual cited Equitable v. Howard from Life Assur- Society, 29, Kan. 51 59 P. Benefit Society, 230, ance 197 Wash. 85 P.2d Council, 893, Kauz v. Great I.O. 1302, involving 253, 119 A.L.R. a case Mo.App. R.M., 341. The reason- 13 insured as the federal case. the same ing convincing. eases of these Washington statute involved in the view and better reason- The sounder provided ease state court that: ing believe, are, found in we Ben- “ ‘Under Rem.Rev.Stat. 155 § jamin Lodge, District v. Grand No. 8160), (P.C. actions can § B’rith, 4, I. B’nai 171 O. Cal. pre- commenced within court 152 732. The P. the statute scribed limitations action, ‘The case said: cause cause of action after has ac- according respondent’s theory, did * * F.Supp. *28 crued. death of not arise Ben- following discussion the state jamin, when evidence but of his by Judge quoted Yankwich, court was furnished, plaintiff death was typical out here as the and is set rationale satisfactory had no of the general rule: of the present fact of death the de- “< * # * lapse A cause of action ac- fendant sev- disappearance present from when becomes a en crues logical demand, party when We see no the insured. es- enforcible begin owning disappeared, insured had and thе it is entitled prosecute disputed by It ac an thereon. fact of action his death was in- legal surer, crues at the moment he has a cause of action is held not meaning en an action to maintain accrue within of the expiration force limitations it and the statute of statute until the is then in motion. Edwards v. time when set of death 492; Beck, 57 Wash. 106 P. Los such cases is raised.” “ Angeles County Metropolitan v. Cas opinion, however, are of the ‘Wе ualty Co., Cal.App. Ins. recognized rule, 699; Fox, P.2d v. 43 Utah Sweetser great weight authority, namely, L.R.A.,N.S., 134 P. that no cause of action accrues until Ann.Cas.1916C, 620. expiration seven-year peri- “ proof od made, when respondent ‍‌‌‌‌‌‌‌‌​​‌​​‌‌‌‌‌‌​​​​​‌‌‌‌​​​​‌‌​‌​‌‌‌​​​‌​‌‌‌‍of death ‘It can is evident that legal right ability where the fact of the did not have death of the pol- to icy must be maintain action established an presumption arising aid of the her issued to husband until the unexplained seven-year period expired his years, absence for should be adhered to. enabled her to her husband’s Under that rule an action death. Prior to commenced she owned with- time six-year action, period, following a cause of it had not seven-year ripened into one that could be en- sumption Couch, period, timely.’ Cyclopedia forced. 7 of In- How- Equitable Law, ard Ed., surance Life Assurance § Soe., supra, page 256, 85 P.2d at states: “ ‘ A.L.R. 1302.” neсessary rely it is “Where arising of death Judge Yankwich continued: years’ unexplained from seven ab- “The Government asserts that to sence, general rule apply principle here would be to expira- cause of action accrues at the change condition which the the sov- seven-year period, tion so that the ereign imposed upon right has the proofs of loss be made cannot before sued,- namely, to be the institution — expiration, such and in the absence years. of the suit within six statutory provision of contract or actually occurs, if “Death causes contrary, limitations run from right But, the of action to accrue. thereof; is, the date lim- that where placed where reliance is not ac- death, itations run from the date of death, presump- tual the by pre- and death is established the arising unexplained tion ab- sumption arising years’ from seven pеriod years, sence for a of seven unexplained absence, the limitation the to sue does not come into period runs from the when the being expiration until after the presumption fact, of death arose. In period. the in case death has to be inferred from “Only period after the years’ run unexplained absence, seven fully, proved. can the fact of death be proof of death cannot be made until exрiration period, and, using the consequently, of such presumption “In the to sus- running pend of limi- statute, of the we begin extending tation does not to run period during are not proofs Again, such can be made. sovereign if which the consent of the provides a statute that all actions proof effective. Absent direct of the death, inaugurates which no of limitation is fact of period, scribed shall be commenced within limitation years seven-yeаr six next period supplies cause of which the accrued, thereafter, proof action and not of the fact is used instead. give ex- effect if suit were instituted before do is to all we So that seven-year piration period, of the presumption without to a assured, Arden, proof Enoch of death.” like be could returned, later the Government recognized must be It might conflicting be confronted logic general rule is doubtful. of the paid claims or find had in full that it Appellee relied instant case in the policy upon person a of a the life who be no would alone there living would, is still who ordi- proof occurred that death narily, obligated still con- be Appellee sufficient policy lapsed. If payment premiums. tinued of the rely on the proof of death not have beneficiary “If the full waits the barred presumption, her claim would be years, playing he or she is fair year period limitations. the six For, with the re- Government. say logic not that she should would Strict sorting presump- to proof aid of the position she relies in a because better death, any tion future pre partly on the partly on the facts death, actually claim that as a fact sumption. this is do feel that But we not did not exist in case is fore- logic rules the strict a case where stalled.” S., Howard U. 28 F. generally accepted prevail over a Supp. equitable reason There is no rule of law. ap Permitting general why rule should not be suit after seven have expired plied died be such a in this case. If the case as dis- this will found, courage premature May 1, 1944, fore claims and only premium justice. to interest of received the Government eases cited entitled, lost noth and has which it was Government in connection with other having money ing by pay out limitation require statutеs do not us to years; apply of seven until after the case different rule from $10,000 indeed, applied generally it has had the use of in insurance cases. longer. little Appellee concedes that she is It is that the true not judgment costs, entitled to interest and and the paying kept have alive accordingly. must be modified argu- years; premiums for seven but this Court District ignores especially practicalities, ment part judg- modified to vacate that case, sent in this where Government Appellee ment which orders that the re- giving department card wife a war costs; otherwise, cover interest and it is address, and did her overseas husband’s affirmed. notify he AWOL not long her that Modified. policy lapsed, but told father, response to his in- insured’s DOBIE, Judge (dissenting). Circuit writing keep over- quiries, on to the to compelled plain- I Again, feel dissent. to seas address. tiff, me, expira- it seems is on to horns filed clаim before the have painful plaintiff, years dilemma. from order of six tion of the recover, George prove to ner, lapse where Skin- but insured, rely 1,1944, necessary presumption died before is nothing policy lapsed. I death, when the think the evi- fact is require gained here by requiring procedure. was too slender such a dence question submission duty pay the Government’s “As and that should have en- been death, the fact from stems States, tered fаvor United de- when, is not harmed ab- Government fendant. fact, proof of direct sent family

legal presumption was last seen his from absence For, on March 1944. His threats to kill an aid or a used as substitute. made, type himself are of often out, by seldom carried soldiers ordered

to embark did not even overseas. He kill make unconditional him- threats to ; kill self but he him- threatened ‍‌‌‌‌‌‌‌‌​​‌​​‌‌‌‌‌‌​​​​​‌‌‌‌​​​​‌‌​‌​‌‌‌​​​‌​‌‌‌‍go My self before he would overseas. guess going avoided over- thаt he both deserting then

seas and death

disappearing to avoid a conviction from

the serious offense desertion No armed forces of United States.

body was ever found. Nor

any when, direct evidence where and supposed

how he was to die. If we he die did before assume

May 1, 1944, policy lapsed, when then I think the of limitations bars recovery. death invoked, absence then expressly provides that

the Statute death presumed to occur “as of the date of period”. of such I can- add the of death under

the Statute the slender evidence of ac- lapse ‍‌‌‌‌‌‌‌‌​​‌​​‌‌‌‌‌‌​​​​​‌‌‌‌​​​​‌‌​‌​‌‌‌​​​‌​‌‌‌‍tual death recovery justify a here.

FORT WORTH & DENVER RAILWAY COMPANY, Appellant, ROACH, Appellee.

Willie

No. 14935. Appeals, States Court of Fifth Circuit.

Feb. Sanders, Amarillo, James Tex., C. Cul-

ton, Morgan, White, Amarillo, Britain & Tex., appellant. Merchant, Amarillo,

John Tex., H. Fitzjarrald, Amarillo, Tex., Merchant & appellee. HUTCHESON, Judge, Before Chief RIVES, Judges. BORAH and Circuit

Case Details

Case Name: United States v. Edna Willhite

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 2, 1955

Citation: 219 F.2d 343

Docket Number: 6890

Court Abbreviation: 4th Cir.