Appeal from the District Court of the United States for the Eastern District of Illinois; Walter C. Lindley, Judge.
Before EVANS, TREANOR, and KERNER, Circuit Judges.
This is an appeal by a veteran of the World War from a judgment denying him any recovery under the "automatic" war risk insurance provision of the U.S. statute (40 Stat. 409, Act of October 6, 1917, § 401, quoted infra) which automatically gave war risk insurance protection to any soldier who became totally and permanently disabled within 120 days from its enactment, October 6, 1917.
Plaintiff did not take out war risk insurance, but he was found by the trial court (jury waived), to have become permanently and totally disabled within the 120 day provision of the statute. His disability were goitre, heart trouble, etc., and he was discharged from service on a doctor's certificate stating that he was no longer physically fit for military duty. The Government has paid the veteran $19,000 in disability compensation payments up to the time of suit.
The trial court first entered judgment permitting recovery for a limited period and later, after a notice of appeal had been filed, entered a second judgment wherein recovery was denied, and the action dismissed.
Two questions confront us:
(1) Did the District Court have jurisdiction to vacate its final judgment for the plaintiff, after a notice of an appeal therefrom had been taken, and enter another final judgment for defendant?
(2) Is the July 3, 1930 amendment (46 Stat. 992), lengthening the period of the statute of limitations applicable to causes of action for claims like plaintiff's growing out of what is known as automatic insurance?
The facts: Plaintiff enlisted in July, 1917, and was discharged December 20, 1917. He filed a claim on June 10, 1931, upon which "notice of disagreement" was sent him, November 9, 1932. He began this action, November 14, 1932.
No question of total and permanent disability is here involved. The evidence is not even before us. The issue is whether the cause of action is governed by the 1928 or 1930 statute of limitations. Sec. 19, Act of June 7, 1924, 43 Stat. 612, amended by Act of May 29, 1928, § 1, 45 Stat. 964, as amended July 3, 1930, § 4, 46 Stat. 992, 38 U.S.C.A. § 445. Stated in another way, does the amendment of July 3, 1930, permitting suit within one year after date of amendment apply to automatic insurance?
The District Court first concluded, October 29, 1938, that a judgment should go to the veteran for monthly claims accruing within the six years preceding the filing of his claim, but not for the entire period from 1917. Defendant filed a notice of appeal from this judgment, on February 3, 1939; a stipulation as to contents of record was filed, as was a statement of points, on February 11, and on March 6, a motion and stipulation were filed in the District Court for an order extending the time to file the record in the Circuit Court of Appeals for a period of fifty days from March 15, which motion was granted.
On April 11 the Government petitioned for a rehearing in the District Court and filed a motion to vacate the findings and conclusions, on the ground that the Towery case (Towery v. United States, 7 Cir., 97 F.2d 906) relied on by the trial court in its memorandum, had been reversed by the Supreme Court. 306 U.S. 324, 59 S. Ct. 522, 83 L. Ed. 678. The trial court granted this motion over plaintiff's objections, which did not include any want of jurisdiction on the part of the District Court to vacate a judgment which was pending in this court on appeal.
On April 25 the court vacted the judgment in plaintiff's favor and entered one for the defendant. It dismissed plaintiff's action. In doing so it relied on the Towery decision, United States v. ...