Peak v. United States

PETITIONER:Peak
RESPONDENT:United States
LOCATION:Railroad Crossing

DOCKET NO.: 491
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 353 US 43 (1957)
ARGUED: Feb 28, 1957
DECIDED: Mar 25, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – February 28, 1957 in Peak v. United States

Earl Warren:

Number 491, Leona Peak versus United States of America.

Mr. Wrinkle.

John S. Wrinkle:

May it please the Court.

This case is hereby writ of certiorari to the Circuit Court of Appeals in the Sixth Circuit.

I think it’s — well, within the views of Mr. Justice Frankfurter’s — on Monday and concurred in by Mr. Justice Harlan.

It originated in the United States District Court for the Eastern District of Tennessee, Southern Division.

It’s a suit on a policy of National Service Life Insurance.

Charles Oscar Peak Jr., then 18 years of age was inducted in the military service on April the 29th, 1943.

And he applied for and received deposit insurance effective May the 1st, 1943, and he continued to serve until July the 5th, 1943 when he disappeared and no tidings or intelligence had been heard of him, since.

And the suit was filed on the 19th day of February in 1954.

He’s insisted in the complaint that presumption of death took effect on the 5th of July, 1950.

Sometime thereafter, Mrs. Peak, Leona Peak, the mother and the beneficiary of the policy applied to the Veterans Administration for the benefits of the policy and that was denied.

And she then filed a suit in the complaint that’s charged that he was suffering from chorea, nervousness, general disability, and weakness, despondency and St. Vitus Dance and that he was home loving, devoted to his parents to his only sister that he communicated with them regularly and that they had a letter dated, the 30th of July 1943, and no intelligent or tidings from him since and that in his disabled condition, it’s alleged that he was totally and permanently disabled.

That allegation in the complaint is not for seeking to keep the insurance and the fact by virtues having waiver of the premiums on the policy because no act to such application was made nor did Mrs. Peak here will make any such application, unless it could be considered in applying to the Veterans Administration for the benefits of the policy that she did that.

It’s also alleged in the declaration that on a private insurance policy in American National Life Insurance Company in which the file there was the beneficiary that the suit was filed in the Chancery Court of Hamilton County, Tennessee, to declare that he was dead and that he died on or about the day to his disappearance, July the 30th, 1943.

That case was heard.

I didn’t tried that case and didn’t come into this one until some time later, but it was decreed by the chancellor that the conditions that are set out in the complaint that he couldn’t have lived for any length of time and that he did die on or about July the 30th, 1943, and that policy was paid.

Now, the Government’s plea to the complaint filed by Mrs. Peak was to dismiss first because of lack of jurisdiction in the United States District Court.

And second, because there was no cause of action or grounds for payment stated in — in the complaint.

And the District Judge construed Section 810 of the Title 38 of the code that was for the purpose, we think, to make uniform throughout the United States, the law with respect to — in National Service Life Insurance policies that the death couldn’t take effect under that statute or be construed to except at the end of the seven-year period.

It is our insistence that — that statute didn’t undertake to repeal and didn’t repeal the English common law.

And that the presumption wise at — July the 30th, 1950, that the soldier was dead but left open in subject to prove as to whether he died on July the 30th and the circumstances of his disappearance, and his physical and mental condition, and his experience in life in whether he could have lived for any lengths of time.

We insist that he died on July the 5th that his nature was such that he certainly would’ve communicated with his family right away.

If anything had happened to him, he could have communicated.

However, I asked, we, as now alleged in the complaint to accept that he disappeared on the 30th of July.

My understanding is that soldiers at that time recruits were paid $75,000 a month.

He would have earned nearly $75,000, say $72,000, and therefore, the policy usually cost about $6 that would have kept in it in effect for 12 months.

We don’t think he did die at the end of 12 months, but we think he died immediately in the facts that are stated here.

Now, the District Judge didn’t pass it all upon that question of the statute of limitations of six years.

Here, it was charged in the petition that the statute of limitations was told during the seven years for waiting to see whether he was dead and whether the presumption would ever take effect.

John S. Wrinkle:

And it went from the District Court to the Circuit Court of Appeals and the Circuit Court Appeals doesn’t seem to withheld with Judge Darrah and correct in — his interpretation of Section 810 of the Title 38.

They say that the complaint doesn’t state cause of action, circumstances sufficient to justify a court or jury in finding and holding that he did die about July the 30th.

They say that it has to take some impending — be exposed to some impending danger or some impending disaster searches in Davie versus Briggs that’s decided, I believe, in 85 U.S. by this Court.

And we cite cases from the Fifth Circuit and from the Fourth Circuit that are contrary to the holding of the Circuit Court of Appeals.

And in fact in the case of — one case that we’ve cite that’s the — that’s the case of United States versus Hayman, Judge Hutcheson writing the opinion of the Court that he didn’t have to be exposed to the some calamity.

This man had Jacksonian epilepsy and he was in the Muscle Shoals area with a stranger and a strange land as was this soldier that make in Georgia and he was never heard of for any tidings or intelligence.

And if I may, I’ll read what Judge Hutcheson said with respect to Davie versus Briggs.

The Supreme Court of United States has itself declined to accept, as exclusive, the rule of Davie versus Briggs that a proof must be made at the time of the disappearance of the person or subject to peril or danger citing at the Fidelity Mutual Life Insurance Company versus Mettler 185 — 185 U.S 308.

And then, in that case, it was declared that the inference of death might arise from the disappearance inconsistent with the continuance of life even though exposed to the some particular peril is not shown.

Now, the Circuit Court of Appeals in its opinion which is cited in the briefs and is published, and published in the record also, they cited the Mutual Life — the Fidelity Mutual Life Insurance versus Mettler.

And in — in that case, it wasn’t held.

That was the case as down in Texas where a man with a team going to — and they’re on some land and he was near a little river and he disappeared and they finally found the place where he had camped and one of the horses was gone and another one was almost starved and tracks were leading toward the river.

And they didn’t find any tracks of the man lead in ways in the river.

That suit was brought before seven years had expired.

And in — in that case, this Court had proved it and cited the case of Davie versus Briggs.

Now, in Davie versus Briggs, it was on North Carolina land case and the complainants contended that the man that had disappeared, Allen Jones Davie, had — had died at the end of the seven-year period.

It changed the statute of limitations on the suit there, but this Court held that he had died in 1851.

Now, he was on a tour from North Carolina through the Indian Territory seeking the road of California.

And after he had reached the Indian Territory, he was never heard of again.

And Mr. — first, Mr. Justice Harlan, wrote the opinion of the Court and according on the Court of the King’s Bench said where a party has been absent seven years, without having been heard of, the only presumption arising is that if he is then dead.

There, it is none as to the time of his death.

And then the Court went on, we therefore, follow the established law when we inquire whether according to the evidence, Allen Jones Davie died at an earlier date than at the end of expiration in seven years when the legal presumption of death rules.

It seems to us that upon the showing made by the complainants themselves that conclusion is inevitable that he died some time during year 1951.

The most recent case is that of Willhite, the United States versus Willhite of the Fourth Circuit.

It originated in the State of North Carolina.

George Skinner was a soldier and was stationed at Camp Patrick Henry, Virginia.

And he went home to visit his folks and his unit was supposed of what we will see shortly as what is the unit of the young man in this case.

And he was in good health, perfect except (Inaudible) so far as the record is concerned.

And he had told his father and mother but not his wife that he would die before he would go overseas and had requested his father to care for the dog or his dog that he didn’t expect either to ever see either his dog or his parents again.

He didn’t report in for the Fort of Camp Patrick Henry, Virginia, and was missing a day after.

John S. Wrinkle:

After seven years, this suit was brought and the District Court and the jury held that there was this vision showing that he was dead and — and that he died about the date of his disappearance as we’re insisting in — in this case.

That sir went to the Circuit Court of Appeals of the Fourth Circuit and reveal an average opinion that the Court held that jury and the lower court were correct and the action on the matter and within the proof.

Another case is United States versus Hayman that I mentioned a while ago, this Court quotes from the Hayman case at great length.

And — as there’s another case says a case of the United States — Howard versus the United States that originated in the United States District Court for the District of Washington State and that was held that the statute of limitation didn’t began to run until the seven-year period had elapsed as in Hayman — United States versus Hamman and the United States versus Willhite that all three did the same holding.

Now, we — we didn’t cite the case in our brief but it’s cited at — in the Willhite case by the Circuit Court of Appeals with the Fourth Circuit of Howard versus Equitable Life Insurance Society 85 Pacific 2d 253.

Now, the soldier in the Howard case was Charles A. Navone and the widow had remarried.

There’s a reason that it’s filed, the Howard versus the United States.

Now then, that case is accorded at the length and the Willhite case.

And another case is —

Earl Warren:

What is the name of that case who counsel that you just — the one in 85 Pacific?

John S. Wrinkle:

Howard versus Equitable Life Insurance Society 85 Pacific 2d 253.

Now, that — that case is cited in the Willhite case and — and all the cases cite — the Hayan case from Alabama at — at Muscles Shouls and we — we think unquestionably that another case as directly in point is from the Fifth Circuit and that’s the Mutual Life Insurance Company versus Hamilton.

Hamilton was a married man and with several children, grown children, and he had been in the penitentiary of Georgia for bad offense and had a great deal to more insurance and his means and his standing problem, the community would have justified.

But his mother had always stood by him and she had mortgage their home to give him some money to go in business in 1929.

And he disappeared on the night of the 28th, 1929, indicating to his daughter that he was turning the business over to her and her husband and he was going elsewhere but no question with what he was in bad health but his premiums went due again for about a year.

And at the end of seven years, that suit was brought in the United States District Court in Florida against the Life Insurance Company and that went to the Circuit Court of Appeals in the Fifth Circuit and Judge Hutcheson participated in that case, cited in it that one of the other judges wrote the opinion of the Court.

And they say here the same thing as these other court’s rule.

Now, the — the defendant insist that the statute begins to run at the time of his disappearance and cited number of cases of this Court which in workman’s compensation cases that the decision here to justify their contention in this case.

We don’t think it applies.

But the statute reads in — in full that no suit or yearly renewable term insurance shall be allowed under this section unless essential had been brought within six years after the right approved on which the claim is made or within one year after the date of approval of the — this amendatory Act, July 3rd, 1930, whichever is a later date and no suit on the United States Government Life converted the insurance shall be allowed under this section unless essential had been brought within six years.

And then the right accrued for the claim and — and the right accrued for which the claim is made.

Now, we insist that — that that statute includes to what was the law at the time it was passed that their common law and their law in America is that the statute doesn’t begin to run until seven years and that the right didn’t approve until seven years because there was no opportunity at all to prove this death and there were presumption which take effect on July the 5th, 1950.

Now, the suit was well brought within six years after that period.

And we — we think that the sovereign — we’re not asking the sovereign to waive its immunity to suit.

The — its immunity to suit didn’t begin to run until 1950 and wouldn’t have expired of course until 1956.

And that therefore, we are within that time provided for and the — the statute of the District Judge construed to be binding on him as this, 810, “No straight law providing for presumption of that shall be applicable to plan for National Life Insurance.”

Well, that’s a claim, I think that means the statutory law of the state that we don’t contend that any Tennessee law applies though we do cited a very famous Tennessee case where the Chief Justice held in his opinion that the statute didn’t begin to run until seven years.

Now then, the part that I think confused the District Judge is this.

If evidence says factual to the administrator, he’s used to establishing the facts continued an unexplained absence of any individual from his home and family for a period of seven years during which the — during which period no evidence of his existence has — has been received.

The death of such individual as the date of the expiration of such period may, for the purpose of this chapter, be considered as sufficiently proved.

John S. Wrinkle:

Now, we think that if it was sought to prove his death at the end of the seven years that that would be all right.

The District Judge whereas the inquiring by in his opinion, they’d make such a statute.

He sought that perhaps it might be a waiver of premium as in that the soldier would have him waived and still be in trying to recover if it took effect at the end of the seven-year period.

But we think that’s just permissive.

It hasn’t changed the common law that it hasn’t — that the administrator himself could receive the evidence of any evidence were to appear showing that it died early and that he himself could administer it there and find that this deceased died on the 5th of July, 1950, that it’s a permissive statute, that part of evident.

That’s our contention.

If I may, I’ll just reserve the remainder of my time.

Earl Warren:

You may.

John S. Wrinkle:

In fact if I need to —

Earl Warren:

You may, Mr. Wrinkle.

Mr. Leonard.

George S. Leonard:

The Government moved in the trial court to dismiss the complaint on two separate grounds considered with the alternatives.

First, that it was brought after the time limited, and second, that it fairly state the cause of action in any event.

The trial court held — repelled to state cause of action, did not reach the other question.

The — the Sixth Circuit reached the limitations question decided the action had been brought too late and alternatively affirmed the trial court on the — of the point.

I would, if I may, first take up the limitation’s point since I think it is critical to this case and is indirect conflict with the Willhite decision of the Fourth Circuit as to the ability of this complaint to state the cause of action that cannot of course be a conflict.

Harold Burton:

You won’t reach that point if — if you just work on the other one.

George S. Leonard:

That could be said, either way, sir.

Otherwise, we would not reach the question of the cause of action if the action could not have been brought in the first place by reason of limitations or without regard to the limitation’s question, we might say that as brought, it fails to state the cause of action in any event.

Felix Frankfurter:

But on the second point, there’s no conflict.

George S. Leonard:

On the second point, there is no conflict.

On the first point, we have a direct conflict between the only other case interpreting the statute, which is United States against Willhite in which the majority held the six-year period under the statute commends that the end of seven years absence.

And it is that, I would like to address myself, too, if I may.

This insured was in the army for three months training.

From the time of his induction at that point, his battalion was ordered overseas and he failed to report.

He had never been heard of since.

Those are the basic facts.

When he was inducted, he took out the $10,000 National Service Life Insurance contract which is here in question, four premiums were paid and after his disappearance, it lapsed.

No further premiums were paid.

No waiver was applied for.

George S. Leonard:

There was nothing further to it.

Accordingly, this case does and must rest on the proposition that the insured died before the lapse of that policy in the summer of 1943, the statute which this — fixed it the time within which an action can be commenced.

In Section 617 of the National Service Life Insurance Act, we found on page 39 of the Government’s brief, and which simply refers the question over to the appropriate provisions of the Word War Veterans Act of 1924, Section 19.

And if I may, I should like to read Section 19 as it fixes the basic limitations period with which we are here concerned.

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 or had this statute stopped at that point.

This question of what was meant by the word “accrued” might well be one in some doubt.

However, the statute went on to say, provided, that for the purposes of this section, it shall be deemed that the right accrued on the happening of the contingency on which the claim was founded.

That clause came to this Court in a World War Veterans — war risk —

Where are you reading on– where do you — where are you reading this?

George S. Leonard:

On page 40 in the center, Section 19 of the World War Veterans Insurance Act.

The first provided the clause that for the purposes of this section, it shall be deemed that the right accrued on the happening of the contingency on which the claim is founded.

That specific clause came to this Court in the Towery case, the United States against Towery.

And this Court held that the only contingency was total disability or death.

I might say assigned that World War I Insurance, so-called War Risk Insurance, provided for a payment on either disability or death.

The National Service Life Insurance is only for death and not for disability.

Disability permits waiver but not payment in the same sense with the older insurance.

This Court held that the only contingency that Congress had provided for within the meaning of this phrase was total disability or death.

In the present action, the Willhite Court– the Willhite majority agreed with this Court and I quote from their decision.

“The contingency on which the claim is founded is the death of the insured.”

Therefore, the only fact which will stop the statute of limitations within the statute here is the death of the insured.

And as I have pointed out, that death must have occurred while this insurance policy was enforced, i.e. in the summer of 1943.

The statute gave such six years, thereafter, to bring suit on the matter.

This action was commenced 11 years, thereafter.

The difference is to be found — the difference is accounted for in Willhite by the reception into the National Service Life Insurance Act of what is referred to as a general presumption in insurance cases.

And as to that presumption, I would like to turn to because the majority in Willhite, unlike the Sixth Circuit below, took that as applying despite the terms of this statute, the National Service Life Insurance.

The statute provides a specific presumption, the proof of death at the end of seven years.

It was read to you by Mr. Wrinkle.

And if I may, I would like to get the specific language of that section, again, turning back in Section 610 of the National Service Life Insurance Act.

It is no part of the World War I, the World War Veterans Act of 1924, that states first, no state law providing for presumption of death shall be applicable to claims for National Service Life Insurance.

That Section was set out in the Willhite case.

George S. Leonard:

That particular sentence was never discussed.

It then follows as Mr. Wrinkle read it, evidence satisfactory to the administrative being presented, death may be presumed and I quote “as of the date of the expiration of such period” — that’s the seven years — so that we have two possibilities here.

The petitioner in this case could rely on actual death and bring suit at anytime within six years.

On the other hand, she could take advantage of the presumption which Congress gave her and simply rest on that at the end of the seven years by merely keeping the insurance and force up to that point or alternatively by applying for waiver.

She could have brought the insurance up to the seven year period and without any of the proof of these elements, disabilities or, otherwise, that were alleged in the present case had set back and rested on the total and completely unexplained absence of the insured on the presumption which Congress gave her.

And then truly, the time would have extended for another six years because having kept the insurance in full, she could rest the death at the end of the seven years precisely as the statute provided.

Having done neither, it is necessary for the petitioner in this case to prove that the insured died twice.

First, he has to presumptively die at the end of the seven years under the statute in order to avoid the statute of limitations problem of six years.

But then, he has to die actually at the beginning of the seven years in order to bring it within the effective period of the insurance since the premiums weren’t paid.

Earl Warren:

Is there anything in the record to indicate when the mother had — first have knowledge as to the fact that she was the beneficiary?

George S. Leonard:

We are here on the allegations of the complaint as taken under the motion to dismiss.

The allegations of the complaint do not set forth anything on that, sir.

In effect, the complaint leaves the impression that they got the last word on July 30, 1943, that he regularly visited home, that he regularly wrote.

In other words, that almost immediately, they would know.

They also alleged than an immediate search by everyone concern, the army, the FBI and others to place, so again, they must have been alerted to that.

They must have known after about the time that he failed to show up when the battalion was ordered out.

Earl Warren:

No, I — I don’t think you understood my question.

When did she first become aware that she was a beneficiary under this policy?

George S. Leonard:

Well, I presume in April of 1943.

Earl Warren:

Is there anything in the record to indicate that?

George S. Leonard:

There’s nothing or whatever in the record to —

Earl Warren:

Why you can — how can you say that then?

George S. Leonard:

Because the allegations of the complaint are that the son was completely dependent on the family.

It was a very close relationship.

He had taken out this insurance.

He had named his mother as the beneficiary.

Earl Warren:

Yes.

George S. Leonard:

And to say, otherwise, we’d pay to presume he never told her about it.

Earl Warren:

Well, is there anything — presume that he — that he did?

Is this is a presumption arise that when a young man goes into the army and takes out government insurance and the premium comes out of his — his wages that he has told the beneficiary that the she is a beneficiary?

George S. Leonard:

Well, I can only say this Mr. Chief Justice.

The normal advice given, as I understand it, certainly the advice given to me under similar circumstances was to take that policy and send it to the beneficiary immediately so that they can hold it.

You see, they — they actually give you a little policy in the normal things, not to carry it around with you in service, but to shift it off to the beneficiary.

It’s like this air insurance policy you should take out at the airport.

You mail them off as quickly as possible.(Voice Overlap) —

Earl Warren:

I just wanted — if there is anything in the record to — to indicate one way or the other way, whether she knew she was a beneficiary.

It might —

George S. Leonard:

The best of my knowledge, not a word, sir.

Earl Warren:

Yes.

George S. Leonard:

And I’ll — Mr. Wrinkle, do you know anything to the contrary?

John S. Wrinkle:

I don’t know.

(Inaudible)

George S. Leonard:

No, he — four payments amounting to $26 had been deducted from his pay to be — waiver could have been accomplished at anytime after August 1, 1947, under amendments to the Act.

The insurance had been kept enforced for a period of six months under premium paying conditions.

The allegations of the present complaint are that he was totally disabled.

And total disability, of course, is the basic ground for waiver of this type of insurance.

Earl Warren:

But after the pay and coming as of the date that he disappeared.

George S. Leonard:

I have no knowledge how they account for that, sir.

Earl Warren:

Did they hold it or until he was found or —

George S. Leonard:

Well, I — I do know that there are number of cases which have held that the premiums cannot be paid by this amount which even the Veterans Administration declares to the policy holders under these payments they make from time to time of the excess.

Its been held that a premium must be paid in every case by the insured.

I should be glad to give the Court a memorandum on that point if it is interested.

In other words, the United States Government does not seek around for money to someone’s account in order to pay the premiums.

Earl Warren:

No, but my point is this.

A man disappeared on the 30th of July.

It must be presumed that he has some money coming from the Government for the month of July.

Who has that paid to if to anybody?

George S. Leonard:

There is nothing in the record to show, sir.

I’d be glad to run that down as a matter of import.

Earl Warren:

What is the normal way of doing that in a situation of that kind?

George S. Leonard:

I have an idea that when a person is charged with being absent without leave and possible suspicion of being a deserter that they forfeit the money.

I’m not at all certain and I — I cannot make that statement with any assurance.

I’d be glad to run it down and let the Court know.

Earl Warren:

But is this man listed as a deserter?

George S. Leonard:

No official action has been taken.

He was absent without leave on his record.

Since he wasn’t brought back, there was no necessity of deciding whether a charge was being made or not.

It’s simply that he failed to report.

He’s never been heard of since.

Those again (Inaudible) his money when it — and make it turn on the limit to apply money on the papers.

George S. Leonard:

Well, sir, let’s assume that of his monthly pay, about $70, had been applied to the payment of premiums here.

They would have kept it alive long enough that the beneficiary could have applied for waiver.

She never did.

Earl Warren:

Did they keep it alive, though, that thing?

George S. Leonard:

No, sir, no, sir.

They would — it was not applied to the —

Earl Warren:

Why do — why do you presume they would if they didn’t?

George S. Leonard:

No, I’m merely saying that if you assumed a condition where the money had been applied, this case would still be here for the reason that while it might extend it for another seven or eight months, it would still be five years short of the statutory time.

In other words, it could have been done but it wouldn’t have changed any — any result.

Could I state what I understand your position to be and see if I — that went straight in my mind.

You say that she had an election neither to proceed on the common law presumption of death or on the statutory presumption, right?

George S. Leonard:

For the best of my knowledge, Mr. Justice Harlan, I have not made any such statement.

Well, you’re assuming that she could for your purpose of your argument.

George S. Leonard:

I’m not on the limitation’s side like we —

But your position was that if she was proceeding on the common law assumption which you say she has to do because she has to show the policy was in effect at the time of death, that on that basis, she’d be out because of the statute of limitations.

George S. Leonard:

Well, sir, your question —

Then I thought you said that if she’s relying on the statutory presumption, namely, the death occurred at the end of seven years and then the cause of action proves then, she is on her pleading shown that the policy was not in full force in effect of that time and nothing as alleged that would excuse payment of the premium, so the policy will be kept alive during that additional period.

George S. Leonard:

Well, it’s quite — it’s quite apparent but I’ve not made myself clear Mr. Justice Harlan.

Well then, I wish you would.

George S. Leonard:

For the first six years based upon the allegations which she know says can prove death in the summer of 1943, she could have brought an action and prove death in the summer of 1943 at any time, presumptions have nothing whatever to do with it, by the common law, general statutory, or otherwise.

George S. Leonard:

In other words, she either had a cause of action for death in the summer of 1943 or she hasn’t proved of it.

I mean, it’s a very simple problem.

Hugo L. Black:

She would then prove it here.

George S. Leonard:

What’s that?

Now that?

Hugo L. Black:

(Inaudible)

She isn’t able to prove death.

George S. Leonard:

The argument at the present time is that this complaint states the cause of action which will prove death in 1943.

Felix Frankfurter:

What you’re saying is that’s the claim.

George S. Leonard:

That’s the claim and that’s why we’re up in this Court, Your Honor, it’s the claim.

This was a motion to dismiss on — on the particular ground that accepting everything they said, it couldn’t be true anyway.

But the petitioner’s position necessarily is that she has stated facts sufficient to prove death in 1943 because the insurance run out in 1943.

William J. Brennan, Jr.:

What — what’s — you say it ran out.

What form it did take running out?

George S. Leonard:

Well, the last payment was in July, a grace period which carried it through until about the end of August 1943.

William J. Brennan, Jr.:

I noticed at page 3, this is the complaint as an allegation to the last paragraph of due application was made.

It didn’t say when but down toward the end of the paragraph, it says that — a verse with at the time during which are application for said insurance was pending before the Veterans Administration, the seven-year period of her son’s unexplained absence told the statute.

Now, do I correctly infer from that this application of hers or whatever it was, this due application was pending during the seven year-period?

George S. Leonard:

No, Your Honor.

William J. Brennan, Jr.:

Why don’t they?

George S. Leonard:

After the seven years have gone, she made the application.

William J. Brennan, Jr.:

Well, I’m — you said this controlled by the complaint.

George S. Leonard:

This — this is controlled by the complaint.

William J. Brennan, Jr.:

Well I don’t know why it is improper to infer them that — from this language that our application for the insurance was made in the seven-year period because it says —

George S. Leonard:

All of those is made due application.

William J. Brennan, Jr.:

No.

It says, while application for insurance was pending, the seven-year period of her son’s unexplained absence told the statute of limitation and that the six-year status of limitations has not yet expired.

George S. Leonard:

That is that — that is not pleading.

That’s a statement of loss clearer on his face.

That’s the whole issue on this trial.

George S. Leonard:

The fact that they state that the six-year —

William J. Brennan, Jr.:

Well, let me put it this way, if I’m right, whether you agree who I am or not, in inferring from that language that it was filed during the seven-year period whereas that indicate that it wasn’t filed before this policy lapsed.

George S. Leonard:

You mean before the six-year?

William J. Brennan, Jr.:

No.

Why — you said that policy lapsed —

George S. Leonard:

The policy lapsed in six years after the end of July 1943, i.e. July 1950.

William J. Brennan, Jr.:

Well then, how do we know that the — from this allegation in any event that the claim wasn’t made before the lapse?

And I gather if it was made before the lapsed, then you don’t have a case, is that right?

George S. Leonard:

No, quite — quite contrary, quite contrary.

William J. Brennan, Jr.:

If it was filed, if a claim was filed before the policy lapse, do you have a case?

George S. Leonard:

Yes, indeed.

William J. Brennan, Jr.:

Well, you still do.

George S. Leonard:

Oh Surely.

The statute provides withholding under two circumstances during the pendency of a claim filed with the administration, which as the complaint through which you pointed out indicates, there were advised 1951 that the claim had been denied.

So that you have another three years after that before the action was brought, so you take the time up to the filing of this.

You have to assume that it was not on only filed before in the absence of any allegation.

You not only have to assume that it was filed before the six years, but three years before the six years lapsed and it was held by the Veterans Administration for a period of four or five years.

William J. Brennan, Jr.:

Well, that’s what I’m suggesting.

Is there anything in this that says that was not the fact?

This went off on the complaint.

There’s no proof, so we don’t know what the plaintiff would have prove in this regard, do we?

George S. Leonard:

It seems to me that his questions were the burdens on the plaintiff to establish the passage of time to set down the dates.

The fact that we know, it’s to the contrary is not governing and that is true.

And there is not, as far as I know, any actual statement of the date.

William J. Brennan, Jr.:

I gather the allegations of the complaint on the motion or that he construed most favorably that they pleaded on this motion.

George S. Leonard:

Most favorably to the plaintiff.

Could I come back again to my confusion or to this confusion?

You say, number one, that take in terms of the face value of which this man died in 1943 and the action on having them brought to 1954 statute bars it, is that true?

George S. Leonard:

That’s — that’s what he claims.

You say secondly is that if you choose to regard the cause of action as accruing under the Act at the end of the seven year period, namely, that he died in 1950 then there’s nothing to show that the policy was in full portion effect or any allegation that the payment of premium was excused during the interval.

Is that your position?

George S. Leonard:

In other words, the petitioner’s case here is that petitioner must use the presumption of death at the end of seven years in order to get the 13-year period within which to fit this suit 11 years after what they claimed as the actual death.

Or which — it seems to me that whichever where you regard the situation or why do you have to reach the statute of limitations because if you take it on her premise, it is 1943 in the statute’s run.

If you take it on the — on the presumption that — the statutory presumption that the action didn’t include 1950, there’s no cause of action for another reason and with — the policy is not full force in effect, so you don’t reach the question to use to what statute of limitation.

(Voice Overlap) —

George S. Leonard:

Well, that is precisely our point, Mr. Justice Harlan.

Well, that’s what I want to get clear.

George S. Leonard:

Now, the only thing I’m trying to make —

Felix Frankfurter:

But the suggestion — but the suggestion is that you have no — you have — you have no business to assume that the policy wasn’t kept alive as, I understood the suggestion and the question put to you.

George S. Leonard:

Well, the statement was made by Mr. Justice Brennan, that there’s no way of telling how many years may have passed during which this matter was before the Veterans Administration.

Now, the tendency of a claim before the Veterans Administration is a tolling fact.

There are two kinds of tolling under this Act, legal disability and pendency of a claim.

There is not the so-called seven-year tolling which is referred to by petitioner.

Earl Warren:

Do you know when the claim was filed?

George S. Leonard:

Yes, we know when the claim was filed.

Earl Warren:

When was it?

George S. Leonard:

In — about April, 1951.

I think it was 1953, the suit.

George S. Leonard:

No, not the suit but the claim to the Veterans Administration.

Well, I don’t know.

I didn’t have —

Earl Warren:

It’s all right.

Let it — let it —

George S. Leonard:

It was in the —

Felix Frankfurter:

But I don’t think — I don’t know.

I’d like to ask you.

George S. Leonard:

I don’t like to go outside the record on that.

We happen to know it but —

Felix Frankfurter:

I — I’d like to ask you.

No matter how favorably you construe the pleading.

Felix Frankfurter:

Are you supposed to presume that circumstances which on the face of a complaint told the statute of limitations it operated in favor of — of the plaintiff?

Is that of another presumption that another favor that’s to be assumed to the pleadings if on the face of it, the statute of limitation — statute of limitation bars an action?

Is it to be presumed that the exceptions which lift the bar also operate in favor of the pleaded?

George S. Leonard:

I should say no.

I would have thought that was —

Felix Frankfurter:

Well, I should have — should I not — I’m asking you —

George S. Leonard:

— I thought I should have thought it was illegal conclusion rather than a pleading effect.

Felix Frankfurter:

It’s not a — it’s a not question that comes within my knowledge from day to day but I should be surprised if that was the law that you assumed that if on the face of a complaint, its barred by the statute, you are to assumed in favor of the pleader.

He says nothing that the statute of limitation does imply.

George S. Leonard:

I cannot follow that because Mr. Justice Brennan is perfectly correct that, as far as the pleading in this case is concerned, it does not state the amount of time that this was spending before the Veterans Administration.

Felix Frankfurter:

Well, but that would be barring that that would be a condition that lifted to the bar.

George S. Leonard:

That would be a condition which lifted the bar, if so pleaded and intended, and the proper period have —

Felix Frankfurter:

My question is whether any such presumption of favorable construction is to be taken when on the face of the complaint on a given theory, statute of limitation bar recovers.

It would be very surprising to be indeed.

George S. Leonard:

If I may move on just for one further statement, we’ve taken the Willhite position and the Howard decisions on which it relies, the two court members in Willhite quoted at great length from the Howard case.

The Howard case, a District Court case in Washington in turn quoted at great length from the Howard case, the state court case.

Now, this — this — this chain of language from the state court case is found right through these three decisions.

All I want to say at this time is that to note that in reading it, the state court was deciding the meaning of the word accrual in a state statute of limitations.

It had none of this — none of the federal limitations before us.

That was recognized by Judge (Inaudible) in the federal Howard case, what said he, it is a general law, nevertheless, and we’ll apply.

There is this much to be said for that decision.

It was under the World War Veterans Act which did not have this presumption clause or the limitation against the use of state law so that it is really only with Willhite that we come flatly up against the fact that by adopting Howard which in turn adopted state law and by referring solely to what is known as general law, which is I understand it to be, is state law.

Willhite has found that despite the fixed presumption in the statute, you may use general law such as it is which I take to be state law against the statement and the statute that no state law shall be effective.

And that I think is, well, Willhite went beyond the holdings of this Court and Willhite was very careful to set out the McIver against Ragan cases and the others in this Court leading up to and of course it did not quote the Soriano case at the last term.

All of which hold to the strict construction of these limits of — statutes of limitation in these suits.

But, the Willhite majority went on to say and I can quote precisely the whole basis for this action being up here and the discrepancy.

However, in Life Insurance case — cases, the Courts have uniformly applied a different rule and it cites three annotations in ALR.

All of which, of course, are state cases, the Willhite case and this case are the only two National Service Life Insurance cases, the only two concerning the presumption which Congress put in to the statute.

Earl Warren:

Mr. Wrinkle.

John S. Wrinkle:

If I may go out at the record a little, Mr. C. G. Milligan who is on our brief has account some representative in the American National to Life Insurance Company and that company had felt the policy ought to being paid and he brought a suit against the father to have that settled.

John S. Wrinkle:

And in that connection, he discovered about this insurance and thought it ought to be paid and he hadn’t had experience in this sort of case and he called on me.

Now, it’s really a tragedy and this case, the boy had had childhood disease or something that disable him and he was an only son and the father was very proud of him and the mother wanted to claim exemption from the draft and the father wouldn’t agree to that and they get him and in the Army and he — one of these boys who don’t (Inaudible) studied with — what seemed to me from what I understand.

Now, with respect to the statute of limitations, Mr. Leonard would attribute to the Congress something that I don’t think is fair to Congress in passing such a law.

It’s been the law since the time in memorial that a presumption of death would carry it at the end of seven years.

And Congress knew that when they passed this statute that’s been read when it was through.

Now then, in no case if Mr. Leonard’s interpretation were correct, would anyone recover because the statute of limitations would run of six years before seven years for the presumption of death.

And it’s to be assumed that Congress well knew that rule and when they passed this statute reading, no sue to her and yes, their renewable term insurance shall be allowed under the section unless the same shall have been brought within the six years after the right accrued for which the claim is made or within one year after the day of the approval of the Mandatory Act.

That was in — in about 1930, we’re relating at that time to War Risk Insurance from World War I.

Now then, provided that for the purpose of this section, it shall be deemed that the right accrued on the happening of the contingency on which the claim was founded.

Now, that was there and there was no way to show that he was dead until the end of the seven years.

Consequently, Congress knew the rule with respect to Life Insurance Company as generally and administration of the Life Insurance policies and we have get to read into what the common law was at that time on what they meant about that.

To me, its very clear that that was what Congress intended just like the Willhite case and the Howard case in the state court of Washington as I believe with the federal court in the Howard case with two separate ones.

The Tennessee Court’s agree that Georgia — the Florida Courts, Hamilton Mutual Life against Hamilton was a Florida case.

This North Carolina case was a federal case, of course, under this.

And with respect to the presumption of death in the Hayman case is the same thing.

There was no statute of limitations claimed there because it was before the statute had run.

William J. Brennan, Jr.:

Mr. Wrinkle, may I ask, does your argument add up to this that you can see that you have to prove death but you say that proving it or having alleged it sufficiently to justify the influence of death in 1943?

Nevertheless, because the seven-year presumption, you had to wait until the end of the seven years before you could bring in action.

John S. Wrinkle:

That’s right.

And that’s the holding of the Courts in the Howard and the Willhite case.

William J. Brennan, Jr.:

Now, may I ask another question, does at any part of your argument today that there’s to be an inference from this complaint or that any is justified that a claim was made with the Veterans Administration during the seven-year period?

John S. Wrinkle:

I don’t think it was made.

I didn’t intend to infer —

William J. Brennan, Jr.:

So you’re not relying on that.

John S. Wrinkle:

— from the pleading.

What do you do with Section 610, which says, “No state law providing the presumption of death shall be applicable to claims for National Life Insurance, the National Life Insurance.”

What do you with that?

John S. Wrinkle:

Well, no state statute now in the Willhite case, the Court that goes on to say that some states have statute maybe have different from the seven years.

Our statute is seven years.

I think many of the states had seven years.

John S. Wrinkle:

Some say — the Willhite case says some states have no statute at all that they just rely upon the common law.

And I think that’s true here that that was true in England and true in the early days of amount and before we had our present federal courts.