Miller v. United States ( 1940 )

TREANOR, Circuit Judge

(dissenting).

I believe that the language “yearly renewable term insurance” of the 1930 amendment of the World War Veterans’ Act included the so-called “automatic insurance”, which was authorized in 1917 by amendment of the War'Risk Insurance Act.

' 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.” Act Oct. 6, 1917, § 401, 40 Stat. 409. No distinction is suggested between “automatic” insurance and insurance which had been duly applied for and granted. In either case Congress was carrying out the expressed intention of the Act to give to every enlisted man increased protection by granting “insurance against the death or total permanent disability” of enlisted men. • Section 400. In the case of “automatic” insurance the Government waivéd formal application and the payment of premiums prior to the happening of total and permanent disability or death, provided such disability or death occurred within 120 days of a designated event. The War Risk Insurance Act provided that “during the period of war * * * the insurance shall be term insurance for successive terms of one year each.” Section 404. The foregoing language describes “yearly renewable term insurance” and includes all war time insurance. At no time during the war was war risk insurance designated as “yearly renewable term insurance.”

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-eluded all insurance within the term “war risk insurance” and recognized only one type of contract of insurance, namely, “term insurance for successive terms of one year each.”

Congress reenacted in an amendment of 1921 (section 404, as amended, 42 Stat. 155) that “during the period of the war * * * the insurance shall be term insurance for successive terms of one year each”; and it was further provided that “where an insured whose yearly renewable term insurance has matured by reason of total permanent disability is found and declared to be no longer permanently and totally disabled, and where the insured is required under regulations to renew payment of premiums on said term insurance, and where this contingency is extended beyond the five-year period during which said yearly renewable term insurance otherwise must be converted, there shall be given such insured an additional period of two years from the date of which he is required to renew payment of premiums in which to convert said term insurance as hereinbefore provided.”

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.” Section 19, as amended, 43 Stat. 612. No reference is made to either converted insurance or yearly renewable term insurance. It would seem impossible to conclude from the language of the amendment that claims based upon “automatic insurance” were not included in the amendment. In July, 1930, Congress enacted the amendment which is directly involved in this suit and which provided that “No suit on yearly renewable term insurance shall be allowed under this section unless * * * and no suit on United States Government life (converted) insurance shall be allowed * * For the first time “yearly renewable term insurance” and “United States Government life (converted) insurance” were mentioned as such. As the time of the enactment of the amendment definite legislative provisions had been made, and supplemented by regulations of the bureau, for the conversion of original war risk insurance into converted insurance. The obvious purpose of the amendment was to place a time limit on actions for claims under the original war risk insurance as well as under the new insurance into which the old insurance was being converted. In short, for purposes of the statute, Congress treated all insurance now as falling into one of two classes, (1) yearly renewable term insurance, and (2) United States Government life (converted) insurance. I cannot agree that failure to refer specifically to the “automatic” insurance can be taken as an intention to exclude it from the terms of the amendment of July 3, 1930 in the face of the fact that Congress used language (yearly renewable term insurance) which was equivalent in sense to the language of the early War Risk Insurance Act which unquestionably did include the automatic insurance. In my opinion the language “no suit on yearly renewable term insurance” is used in the amendment to designate all suits on insurance claims other than suits for claims on converted insurance.