Peak v. United States, 353 U.S. 43 (1957)

Peak v. United States

No. 491

Argued February 28, 1957
Decided March 25, 1957
353 U.S. 43

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Syllabus

Petitioner brought suit in a Federal District Court in 1954 to recover the proceeds of a National Service Life Insurance policy on an insured who had been missing since his disappearance from the Army in 1943. The complaint alleged that, prior to the insured’s disappearance, he was in frail health and had become totally and permanently disabled. The complaint alleged further that the insured had died in 1943, and that his total and permanent disability during the time the policy was in force entitled him to waiver of premiums on the policy.

Held: upon the allegations of the complaint, petitioner was entitled to take the case to a jury. Pp. 44-47.

(a) Where proof of an insured’s death must rest primarily upon his unexplained absence, suit may not be maintained, as a practical matter, prior to the expiration of the statutory 7-year period, and it is from that date that the 6-year statute of limitations should be computed. P. 45.

(b) The provision of 38 U.S.C. § 810 that the death of the insured "as of the date of the expiration of such period . . . may . . . be considered as sufficiently proved" does not preclude the beneficiary from introducing further evidence from which the jury might conclude that the insured’s presumed death occurred at an earlier date when the policy was still in force. Pp. 45-46.

(c) It is only where the beneficiary proves merely the fact of the insured’s 7 years’ unexplained absence that the statute establishes the presumption of death as of the end of that period. P. 46.

(d) The "contingency on which the claim is founded," as used in 38 U.S.C. § 445, means the end of the 7-year period when the presumption of death arose. P. 46.

(e) Since the claim was filed by petitioner within one year subsequent to the presumed date of death, it should be considered as including the lesser claim of premium waiver under 38 U.S.C. § 802(n). Pp. 46-47.

(f) The alternative cause of action, based on allegations of permanent and total disability of the insured at the time of his disappearance, would not have accrued until 1950, so the 6-year statute of limitations had not run when this suit was brought. Pp. 46-47.

229 F.2d 503 reversed and remanded.