*1 cent, contract, which per lation to the 20 had part already performed on the him or Connelly amount due so already been partnership thereunder had earned; hardly probable that seems but it approve the transfer the court intended to bankrupt, representing of this asset of compensation earned, along with already which Raab agency contracts under to divide the commissions Co. were But, Be subsequently rentals collected. cent, per may, under the 20 bankrupt es- contract was an asset of petition, tate at the time of the re- any rights Raab Co. have cause, in sulted from orders entered company be made proper adjudicate the proceeding respect to that parties with accordingly claim. The below will court pro- party to the have Raab & made a Co. may come in and assert ceeding so that it may re- which it claim with interest cent, contract, will spect per rights of proceed adjudicate the then parties principles with the accordance here laid down. part,
Affirmed in reversed
remanded.
UNITED STATES v. POWELL.
No. 4221. Appeals,
Circuit Court Fourth Circuit. Jan. NORTHCOTT, Judge, dis-
senting.
*2
789
admin-
policy. As
amount due under the
month-
he recovered
istrator of the soldier
25,
ly
January
from
installments of $57.50
disability,
1919,
soldier’s
the date of the
1925,
his
25,
September
the date
until
of
monthly
death,
installments
also commuted
March
and after
in the sum
20, 1931,
from
of $28.75
fa-
the
the death of
the date of
1931,
ther,
5,
the
and from
after
and
June
ad-
As
date of
the mother.
the death of
Director,
Martin,
of
Bureau
C.
Julius
he
ministrator
father and mother
the
of
Washington, D.
Litigation,
Risk
of
War
monthly installments of
recovered
$28.75
Atty.,
Sapp,
of Colum-
(Claud N.
C.
U. S.
the
respect
from the death of
with
each
to
Atty.,
bia,
C.,
Seegmiller,
L.
S.
and Keith
The
respective
deaths.
to their
D.
Washington,
Department
Justice,
question
correct-
government
the
does
(cid:127)C.,
brief), for the United States.
the
on
recovery
his
as administrator
ness of
Florence,
C.,
McEachin,
for
P. H.
re-
is
the soldier.
contention
Its
appellee.
covery
permitted him as
been
should have
(1)
the father or mother:
administrator of
PARKER, NORTHCOTT,
Before
and
capac-
filed
Because no
claim
SOPER,
Judges.
Circuit
as
ity;
joined
he was not
(2)
and
because
right to
plaintiff
in
until the
PARKER,
Judge.
by
had been
of’lim-
sue
barred
the statute
appeal
This
risk insur-
in war
itations.
in
ance case which there were verdict and
judgment
plaintiff
finding,
for the
on
On the first
we think
contest,
government
which the
does not
2, 1931, by
the ad
July
claim filed on
totally
the insured
and
soldier became
compliance
ministrator was
sufficient
25, 1919,
permanently
January
disabled on
justify
recovery of
with the statute
to
n whilethe
policy
force.
sued on was in
The
payable
policy
the installments
under
1925;
soldier died
and his
and
father
mother,
without consid
to
father and
mother, who were beneficiaries under the
ering the
filed
them. At that time
claim
policy,
life insurance feature of the
imme-
beneficially
persons
any
entitled
re
to
diately
thereunder,
filed claim
which was
covery
policy
under the
the administra
n denied.
Both the
and
father
mother died
and
tor of
were his
the soldier
brothers
deaths,
year
in the
1931. After their
on sisters;
bene
these were
and
July
the administrator of
sol-
ficially
recovery
the in
entitled
to
dier filed claim with the Veteran’s Admin-
and
estate of
father
stallments due the
for
policy,
istration
the full amount of the
was filed
the ad
mother. The claim
when the claim was denied
and
filed suit
of these
and
ministrator
brothers
in behalf
for the full amount thereof within the time
soldier,
sisters of the
who were
bene
thus
Thereafter,
qualified
.allowed
law.
he
ficially
the whole amount due
entitled to
administrator
.as
of the soldier’s father and
filed
policy
for the full
and
mother,
30, 1936,
on
and
December
was al-
pro
amount due
thereunder.
complaint
lowed to amend
so as
his
to sue vides,
445:
“The term
U.S.C.A. §
as administrator of the father and mother
‘claim,’
section,
as
used
means
well as
as
administrator of the soldier.
alleges permanent
total
writing
recovery
entitled
when
time
the contract
aat
administrator
the soldier
are
force,
insurance was
which uses
sisters,
they
soldier’s brothers
shozmng an intention
in
zvords
plaintiff’s recovery
are entitled also
benefits,
‘disagree
and the term
surance
.administrator of
father and mother.
ment’ means a denial
They were
entire
entitled
amount of
Veterans’
Administrator
Affairs or
policy
at
claim was
both
the time
made
appeal
his name
acting
someone
by the administrator
in 1931 and at
(Italics ours.)
to the Administrator.”
time that he
instituted suit
by plaintiff
al
Had the claim filed
capacities
lowed,
money
gone
in his several
proper persons
were
-as administrator
who
of the soldier
it,
titled
considered as next
given
(cid:127)soldier’s
father
whether
and mother was
parents;
of his
judgment
soldier or
in the
the entire kin
court below
N.S., 657;
deny recovery
large
-of
Reardon v. Balaklala
Consol.
Co.,
affirmed,
Copper
C.C.,
ad-
money
justly
government
193 F.
C.
C.A.,
City
mittedly
merely
584;
Quaker
owes them
because
220 F.
Cab Co.
Fixter,
327;
C.C.A.,
which was
in their behalf
Weldon v.
4 F.2d
748;
States, C.C.A.,
Key
administra-
not filed in the name of three
*3
C.C.A.,
one,
Fekete,
carry
tors instead of
tech- stone Coal
would be to
& Coke Co. v.
nicality entirely
72, 73;
Pennsylvania
said in 232
too far. As we
F.
R.
Bixler v.
Townsend,
Co., D.C.,
the case
4
of United States v.
201
553.”
F.
Cir.,
1013,
pur-
only
81 F.2d
1014: “The
Supreme
Court
The attitude
pose
as
requiring
of
the
of claim
a
of
the
amendments
permitting
of
prerequisite
the
give
suit
notice to
to
is to
in the recent
this
well stated
character was
government
un-
being
that claim
made
is
Memphis Cotton
case of
v.
United States
may
inves-
policy
der the
so
make
that
it
278, 280,
62, 68,
Co.,
Oil
53 S.Ct.
288 U.S.
tigation
pay any
due claim-
and
amount
fixed the
619,
“It has
77 L.Ed.
follows:
as
being subjected
ant without
to the trouble
increasing lib
limits of amendment with
expense
and
litigation;
of
and
theory of
erality.
legal
change
A
showing
insurance bene-
‘intention
law,’
action,
departure
the
from law to
‘a
Congress
fits’
purpose.
this
doubt-
answers
as a test. Union
has at times been offered
many
less
that
claims would be
realized
295,
285,
Ry.
Wyler,
Pac.
158 U.S.
Co. v.
made
without
the
illiterate claimants
877,
Later deci
15
983.
S.Ct.
39 L.Ed.
counsel,
in-
advice and assistance of
that
test is
sions
made
clear
it
tended'that a
attention
calling
claim either
general va
longer accepted
no
as one of
permanent
to total
or show-
Missouri,
lidity. Thus,
Kansas
Tex
in
ing
‘intention
insurance bene-
an
to claim
570,
Ry.
Wulf,
as
226
33 S.
Co. v.
U.S.
fits’ should
sufficient.
It
no doubt
be
was
134,
135,
355, Ann.Cas.1914B,
Ct.
L.Ed.
57
rulings
are
to avoid such
we
technical
as
plaintiff
capacity
in her individual
suing
Congress
asked
in
to make
this case that
a
her
under
statute for
son’s death
Kansas
provision
in
embodied
the statute the broad
was
adminis
allowed
amend to sue
as
quoted.”
which we have
Employers’
tratrix under
Federal
Lia
the
5-1-59,
bility Act,
after the
45 U.S.C.A. §
point,
suit as
On the second
the
statute of
barred
limitations would have
originally
instituted was
the entire
another action.
In New York Central &
recovery
policy,
amount of the
340,
Kinney,
H.
43
R.
Co.
260
R.
U.S.
v.
have been for
benefit of the
the
122,
294, there
in sub
S.Ct.
67 L.Ed.
was
are
fact the
who
titled,
in
ruling.
stance the
Friederichsen
same
In
admin
whether the suit
one
is
450,
Renard,
207,
62
v.
S.Ct.
U.S.
38
247
istrator or
three. When it was discov
1075,
cause,
L.Ed.
action
a defraud
of
ered that
the amount sued for
buyer
ed
to set
was turned
aside
contract
only by
technically
recoverable
the
damages
recover
into
cause
action to
mother
administrators
the father and
argument
can
for deceit.
‘Of course
soldier,
properly
judge
the
trial
side,
a de
other
but when
be made on the
plaintiff,
qualified
allowed
had'
who
as
beginning
notice from
fendant has had
administrator,
plaintiff
their
be made a
up
trying
and is
plaintiff sets
capacity
capacity
well
in
as
his
spe
it because
against
enforce
Lopez
as administrator of
soldier.
v.
conduct,
statute
reasons for the
cified
States, Cir.,
982,
4
82
As
United
F.2d
exist,
are of
not
and we
do
of limitations
weight
said in the
cited: “The clear
case
ap
be
liberal rule should
opinion that a
rule,
authority supports
‘an
”
plied.’
changing
amendment
in which a
government
has
In the case at bar
plaintiff
change
sues does
the cause of
not
beginning that
had notice from the
action
in
lim
so as to let
the defense of
trying to en-
up and was
had set
itations.’ See exhaustive note on
sub
this'
r
the full amount of the
claim for
force a
ject
pages
And
74 A.L.R.
1269-1276.
policy.
applied by
this is the rule
courts
federal
954,
777;
relies
Smallwood
government
28
R.S.
U.S.C.A.
§
§
287,
States,
Cir.,
Missouri,
Wulf,
v. United
4
91
K.
T. R.
v.
226
Co.
U.
Mills, Cir.,
487;
570, 576,
135;
6
91 F.2d
v.
33 S.Ct.
WALKER v. UNITED STATES. SANBORN, Judge, dissenting. Circuit No. 10862. Appeals, Eighth Circuit Court Circuit.
Jan. 1938. See, also, Buck, States F. 213; Id., Supp. F.Supp. 827; U. S. v.
Walker, F.Supp. Ringolsky, Boatright, I. William G. J. Harry Jacobs, Graves, L. Ludwick James Daleo, Boatright Ringolsky, Jacobs, Lucas, Landon, Fane, Johnson, Graves City, Mo., appellant. all of Kansas Milligan, Atty., Maurice M. U. S. Ran- Wilson, Blair, dall Sam C. Thomas A. Costolow, Phelps, and Richard K. Asst. U. Attys., City, all Mo. Kansas GARDNER, SANBORN, Before THOMAS, Judges. Circuit THOMAS, Judge. Upon the second count an indict- charging appellant ment with violation of Code, section 135of the Criminal 18 U.S.C. 18 U.S.C.A. he tried § § From and convicted. appeals. such conviction he the in- The statute provides dictment is based that “Who- force, or corruptly, ever threats or or by any threatening letter communica- tion, influence, intimidate, shall endeavor to