Appeal from the District Court of the United States for the Northern District of Indiana, Fort Wayne Division.
Before EVANS and SPARKS, Circuit Judges, and BALTZELL, District Judge
Appellee brought this action to recover upon a war risk insurance contract, because of alleged total and permanent disability.
A disagreement between the parties as to the liability under the contract, prior to the institution of suit, is a jurisdictional requisite. 38 U.S.C.A. § 445. The complaint alleges that such a disagreement did exist prior to the filing of suit, and reliance therefor is upon a letter written by the Manager of the Veterans' Bureau at Indianapolis, February 29th, 1932. After the denial of the claim and the filing of suit, appellee appealed to the Administrator's Board of Appeals. The ruling of the Manager was affirmed on May 18th, 1932. Notice of the decision of the Board of Appeals was mailed appellee on May 21st, 1932, which notice constituted a disagreement under section 19, World War Veterans' Act, as amended (38 U.S.C.A. § 445, supra). On June 11th, following, appellee filed a second paragraph of complaint which included the disagreement, as evidenced by the decision of the Board of Appeals. To this complaint, appellant appeared generally and filed its answer, a general denial to both the first and second paragraphs thereof. In so far as the issues are concerned, nothing further was done until January 14th, 1935, the date upon which the trial was begun, when appellant asked leave of court to withdraw the first paragraph of its answer, and to file a motion to dismiss the complaint. Such leave was granted, the answer withdrawn, and the motion to dismiss filed.
On this motion to dismiss, appellant argued that the denial of the Manager was not a valid disagreement as contemplated by the statute; that appellee's appeal from the ruling nullified his suit and that the second paragraph of complaint related back to, and was a part of, the original complaint. The Court overruled the motion to dismiss, whereupon general denial answer was filed, and the case tried to a jury. At the conclusion of all the evidence, appellee dismissed the first paragraph of his complaint, and the cause was submitted upon the second paragraph. A verdict for appellee was followed by a judgment in his favor.
The first question presented is whether the District Court had jurisdiction to try the case. It is appellant's contention that even though a complete cause of action may have been stated in the second paragraph, such pleading constituted an amendment only and related back to the date of the filing of the original complaint. On this assumption it contends that no disagreement existed at that time, as required by statute, and that consequently the court was without jurisdiction. In each of the cases cited by appellant the question arose upon the effect of the filing of an amended complaint and not an additional paragraph, as in the instant case.
An entirely different situation is presented where a second paragraph of complaint is filed, as in the instant case, and a complete cause of action is therein stated. At the time such paragraph was filed, no objections were made thereto in so far as disclosed by the record. Furthermore, appellant entered a general appearance thereto and placed the same at issue by the filing of an answer in general denial. No further steps were taken, in so far as the issues were concerned, for practically two and a half years thereafter, and then only upon the commencement of the trial. It has been generally held by the Supreme Court of Indiana that a separate paragraph of complaint is a separate and distinct cause of action and does not relate back to the time of the filing of the original complaint. If an additional paragraph of complaint relies upon a cause of action that has accrued subsequent to the filing of the original complaint, it might be stricken out on motion, or, if defendant appears thereto, he is entitled to a continuance, and failure to object constitutes a waiver. Farrington v. Hawkins, 24 Ind. 253; Jordan et al. v. Indianapolis Water Co., 159 Ind. 337, 64 N.E. 680. If appellant had entered an objection at the time of the filing of the second paragraph, and appellee had doubted his position, he still had ample time to file a new suit before being barred by the statute. However, appellant made no objection to the filing of the second paragraph. Its motion came too late and was properly overruled.
It is next contended by appellant that, even though the second paragraph of complaint constituted a separate cause of action, nevertheless such paragraph was filed one (1) day too late. The original claim was filed on June 13, 1931, which was twenty days prior to the last day for the filing of claims. 38 U.S.C.A. § 445, supra. Appellee would therefore have twenty days after the denial of his claim within which to file suit. The claim was denied by the Board of Appeals on May 21st, 1932. It is apparent, however, that appellee could not have received the notice by mail from Washington, D.C., on the day it was mailed. A reasonable length of time must be given for the receipt of notice. This is the reasonable construction to be given to the statute and we conclude the second paragraph was filed within the time permitted by the statute. See: Albek v. United States, 4 F. Supp. 1020 (D.C.); Creasy v. United States, 4 F. Supp. 175 (D.C.).
Appellee enlisted in the military service of the United States on May 3rd, 1918, and was honorably discharged therefrom on January 18th, 1919. Within a week after his enlistment the policy sued on was issued to him. It is stipulated that such insurance contract was in full force and effect up to and including midnight of March 3rd, 1919.
At the time of the trial, appellee was a resident of Marion, Indiana, where he had lived for more than twenty years. He saw no service outside of the United States; serving practically all of his time at Camp Upton, New York. At various times, while he was stationed at Camp Upton, he was granted furloughs for short periods. During such furloughs he visited with his wife, to whom he was married about a year previous, and who was employed in a hotel at Upton. She was his second wife. According to his testimony, he contracted syphilis from this wife during the time he was stationed at Camp Upton. After his discharge from the service he did not again live with her, but returned to the home of his mother. She was the widow of a civil war veteran and received a pension.
He obtained a divorce from his second wife shortly following his discharge from the service, and thereafter married again, from which wife he was also divorced. He married a fourth time, and was divorced from this wife at some time prior to the date of the trial. In his testimony he explained in detail his various activities during the time he was in the service, and stated that upon the first night thereof he contracted a bronchial trouble from exposure to the weather, and that he afterwards lost his voice as a result thereof. He spent a short time in a hospital following this experience. He also stated that during the time he was in the service he had the "flu" which greatly impaired his health. Upon his return to Marion, he began working for the Eagle Dye Works and continued such work for about two weeks, during which time he was treated, according to his testimony, by a colored physician by the name of Dr. Thomas. He later worked for the Brandan Electric Company at Marion, canvassing and taking orders, for which work he received a commission upon sales. He did some work for the Singer Sewing Machine Company at various times and places. Mr. Clarence J. Christian, chief clerk of the company, testifying from its records, stated that appellee worked a total of sixty-nine weeks for such company. He also worked as a common laborer in and around Marion.
Since his discharge from the service, appellee has been treated, according to his testimony, by Doctors Daniels, Davis, Vaughan and Bailey, aside from Dr. Thomas, and also by Doctors Kauffman and Drum, of Muncie, the latter of whom died before the date of the trial. During a part of the time since his discharge, he has received compensation from the Government. He signed a statement when discharged, that he had no reason to believe that he was suffering from the effects of any wound, injury or disease, or that he had any disability or impairment of health, which statement was attested by his commanding officer. Since discharge, appellee has, at various times, in making applications for compensation, signed statements as to his physical condition and his activities, in so far as work is concerned, and while the work done, as shown by such statements, was not continuous, yet it extended over a considerable length of time.
Several lay witnesses testified concerning his physical condition. The testimony of his brother, John, and of his nephews, is general, and did not relate to his condition immediately following his discharge. He was described as being short of breath and having fainting spells. Only one of the lay ...