United States v. William H. Sinor, Administrator of the Estate of Clyde Sinor, Deceased, and William H. Sinor , 238 F.2d 271 ( 1956 )

RIVES, Circuit Judge

(dissenting).

By its pleadings,¹ the Government assumed the burden of proving that the Veterans Administration had determined that the insured “was not prevented from filing timely application for waiver due to circumstances beyond his control.” The district court quoted that averment and noted that it is “unsupported by the proof here.” Under such pleadings, I think that the district court was correct in holding that the burden rested upon the Government to establish the absence of any circumstances beyond the insured’s control. Certainly, that theory was implicit in the Government’s answer (footnote 1, supra), and if the plaintiffs tried their case on that theory, and the district court rendered judgment relying thereon, the Government should not now be heard to complain.

The majority, however, approves the earlier holding of this Circuit that, “ * * * in order for an insured person to claim a condition of health as ‘circumstances beyond his control,’ it must be shown that he was mentally incapable of making an application for waiver.” Aylor v. United States, 5 Cir., 1952, 194 F.2d 968, 970, followed in Horton v. United States, 5 Cir., 207 F.2d 91, 94. In that holding the Fifth Circuit stands alone, and is opposed by at least five other circuits. Landsman v. United States, 92 U.S.App.D.C. 276, 205 F.2d 18, 21, 22; United States v. Myers, 8 Cir., 213 F.2d 223, 225, 226; Sly v. United States, 7 Cir., 220 F.2d 212, 216, 217; Kershner v. United States, 9 Cir., 215 F.2d 737, 739, 740; United States v. Vandver, 6 Cir., 232 F.2d 398, 401, 402; see also, Alvarez v. United States, D.C.E.D.Pa., 133 F.Supp. 609, 612.

In United States v. Vandver, supra [232 F.2d 402], the Sixth Circuit points out that:

“The humanitarian purpose of the statute here controlling points to a liberal interpretation in aid of the veteran. United States v. Zazove, 334 U.S. 602, 68 S.Ct. 1284, 92 L.Ed. 1601; Thomas v. United States, 6 Cir., 189 F.2d 494; Landsman v. United States, 92 U.S.App.D.C. 276, 205 F.2d 18.”

Kershner v. United States, supra [215 F.2d 739], is directly in point, for in that case an insured suffering from chronic myelogenous leukemia, the same disease which afflicted Clyde Sinor, was held so excusable due to “circumstances beyond his control.”

The least consideration, it seems to me, which a grateful Government should accord the beneficiaries of this insured veteran is another opportunity to prove their case when re-tried upon a different theory. That would be in accord with our consistent practice to remand for retrial instead of rendering judgment when by a remand the interests of justice can best be served. Pilot Life Insurance Co. v. Boone, 5 Cir., 236 F.2d 457; Gulf Oil Corporation v. Wright, 5 Cir., 236 F.2d 46, 48; M. M. Landy, Inc., v. Nicholas, 5 Cir., 221 F.2d 923, 932; Associates Discount Corp. v. United States, 5 Cir., 200 F.2d 537, 538; City of Fort Worth, Texas v. United States, 5 Cir., 188 F.2d 217, 223.

I, therefore, respectfully dissent.

Rehearing denied:

RIVES, Circuit Judge, dissenting.

1 . Paragraph II of its answer roads:

“Answering Paragraph 2 of the amended complaint, defendant denies each and every allegation of said Paragraph 2 and demands strict proof thereof, and for further answer to said paragraph avers that the Veterans Administration has not determined that Clyde Sinor was totally disabled for insurance purposes and has determined he was nat prevented from filing timely application for waiver due to cireumsiances beyond his control.” (Emphasis supplied.)