Burkett v. United States

Full title: BURKETT v. UNITED STATES

Court: Circuit Court of Appeals, Fifth Circuit

Date published: Jun 16, 1934

71 F.2d 683 (5th Cir. 1934)

Opinion

No. 7126.

June 16, 1934.

Appeal from the District Court of the United States for the Southern District of Georgia; William H. Barrett, Judge.

Suit by Thomas L. Burkett against the United States. From a judgment of dismissal, plaintiff appeals.

Affirmed.

S.F. Memory, of Blackshear, Ga., and J.A. Roberts, of Douglas, Ga., for appellant.

Randolph C. Shaw, Sp. Asst. to Atty. Gen., and Dunbar Harrison, Asst. U.S. Atty., of Savannah, Ga., for the United States.

Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.

FOSTER, Circuit Judge.

This is an appeal from a judgment dismissing a suit to recover on a policy of war risk insurance as barred by the statute of limitations incorporated in section 19 of the World War Veterans' Act, as amended by the Act of July 3, 1930, § 4 (38 USCA § 445). The claim was filed with the Veterans' Bureau June 29, 1931, and was rejected September 24, 1931. Suit was filed November 13, 1931. Section 19, as amended, bars suit filed more than six years after the cause of action accrued or more than one year after the passage of the act, whichever date is later, but extends the time for the period the claim may be pending in the Veterans' Bureau. It is admitted that the suit was barred under the provisions of said section 19, but appellant has contended that as all laws pertaining to war risk insurance were repealed by the Act of March 20, 1933 (38 USCA § 717), that section has no application.

Extended discussion of the question is unnecessary. It is plain from the provisions of section 17, Act of March 20, 1933, known as the Economy Act, that pending suits were exempted from the repealing provision and by the decision of the Supreme Court in Lynch v. U.S., 54 S. Ct. 840, 78 L. Ed. 1434, decided June 4, 1934, in which it was held that the clause in section 17, "all laws granting or pertaining to yearly renewable term insurance are hereby repealed," is unconstitutional, any doubt is put at rest. Necessarily the defenses that were open to the government before the passage of the Economy Act were available in this suit.

Affirmed.