sister had testified that deceased was contemplating marriage, had apparently recovered from his ailment and was ambulatory at the time of the attempted reinstatement, plaintiff had met the burden of proof and that the burden then shifted to the defendant to show the veteran was not an insurable risk under the law.
Obviously, plaintiff has lost sight of the provisions of Regulation 10.3423(a) which provides for reinstatement if application is made 'within six months after lapse or six months after the date of approval of Public Law 589, 79th Congress, whichever is later, provided the applicant be in as good health on the date of the application * * * as he was on the due date of the premium in default and furnished evidence thereof satisfactory to the Administrator.' (Emphasis supplied.)
The pertinent dates are as follows:
Date of Discharge October 20, 1945
Date of Default December 29, 1945
Date of Approval of Public Law 589, 79th Congress August 1, 1946
Date of Application November 27, 1946.
The application, having been filed November 27, 1946, was three months and twenty-six days after the date of approval of Public Law 589, to wit, August 1, 1946, being a date 'later' than the date of default or lapse of the policy, to wit, December 29, 1945, and therefore comes squarely within the provisions of Regulation 10.3423(a), which requires that evidence satisfactory to the Administrator be furnished that applicant was in as good health on the date of the application as he was on the due date of the premium in default. On this issue there was not a scintilla of evidence before the Court.
Secondly, under the requirements of 38 U.S.C.A. § 802(c)(2), supra, I feel, primarily, that plaintiff not only completely failed to establish the fact that the veteran was in good health at the time of the application but he also failed to establish any service connected disability which, under the provisions of the section quoted, would relieve him of the requirement of such proof, in that there is nothing in the record to indicate the state of health of the veteran at the time of his discharge, which, incidentally, antedated the date of default by a little over three months.
Finally, there was no reinstatement by estoppel. Plaintiff contends that the fact that the Veterans' Administration retained the premiums, issued receipts therefor, and took no action either to approve or deny the application for a matter of months, estops the Administration from denying the approval of the application. In support of his position, plaintiff cites two Pennsylvania cases, both involving private insurers. While the argument and the authorities cited may support such a proposition in an action against a private insurance company, they are completely inapplicable in an action against the United States.
In James v. United States, 4 Cir., 185 F.2d 115, 118, the Court said:
'Plaintiff's alternative argument, that of reinstatement by estoppel, we conceive to be the major issue of this case. Even if we assume for the moment that the application was properly made and that the Veterans' Administration's delay was unreasonable, still the United States is not estopped to assert the total disability of the insured. Plaintiff's statement is generally true as to private life insurance companies that unreasonable delay by an insurer in approving or rejecting an application for reinstatement of a lapsed policy operates as a waiver of the insurer's right to assert facts which otherwise would permit him to deny the application. Froehler v. N. American L. Ins. Co., 1940, 374 Ill. 17, 27 N.E.2d 833; Apostle v. Acacia Mutual L. Ins. Co., 1935, 208 N.C. 95, 179 S.E. 444; Lechler v. Montana L. Ins. Co., 1921, 48 N.D. 644, 186 N.W. 271 (23 A.L.R. 1193); Rocky Mount Savings & Trust Co. v. Aetna L. Ins. Co., 1930, 199 N.C. 465, 154 S.E. 743. This general rule, however, does not apply when the United States, rather than a private company, is the insurer.
'It is well settled that the United States is in a position different from that of private insurers and is not estopped by the laches or unauthorized acts of its agents. Federal Crop Ins. Corp. v. Merrill, 1947, 332 U.S. 380, 68 S. Ct. 1, 92 L. Ed. 10; Wilbur National Bank v. United States, 1935, 294 U.S. 120, 55 S. Ct. 362, 79 L. Ed. 798; United States v. Norton, 5 Cir., 1935, 77 F.2d 731; United States v. Loveland, 3 Cir., 1928, 25 F.2d 447. But plaintiff argues that since he is seeking to base estoppel or waiver on an omission to act, rather than on a positive act of a government official in excess of his authority, he should receive different treatment. He draws an artificial distinction. In United States v. Loveland, last cited, reversed on other grounds by confession of error, 278 U.S. 665, 49 S. Ct. 184, 73 L. Ed. 571, the following appears, 25 F.2d at page 448: 'The question here involved is the power of servants of the United States to place liability upon it by an act of omission when they would be powerless so to do by an act of commission. The decisions holding that a servant of the government has in the absence of statutory warrant and duty, no such power, are too firmly settled and so providently wise as to forbid our holding that, when the government broadened its field of operation to new fields, it thereby broadened the power of those it employed in such new fields to the extent of allowing them, by acts of neglect or omission, to commit the government to liability in such field which they had no power to do in other spheres of government activity."
In the James case the application for reinstatement was made on June 10, 1947, insured died December 18, 1947, and the plaintiff beneficiary was notified of the disallowance of the claim on June 9, 1948, almost exactly one year after the date of the application. As the Court there stated: '* * * the fact that the Veterans' Administration did not return premiums is not indicative of approval. Although their return would evidence a denial of the application, the converse does not follow. These premiums were held in suspense as unapplied credits to the account pending action on the application.
Plaintiff's motion for a new trial will be denied.
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