The opinion of the court was delivered by: YOUNGDAHL
Plaintiffs seek to recover $ 5,000 National Service Life Insurance under 38 U.S.C.A. § 802(d)(3)(B) of Lorenzo H. Pusana who was killed in a Japanese prison camp on May 27, 1942.
The Government interposes two defenses to plaintiffs' cause of action: (1) that plaintiffs are barred by the statute of limitations, 38 U.S.C.A. §§ 445, 817 and (2) that the plaintiffs in this case, the mother and father of the deceased veteran, were not dependents entitled to recover under the act.
(1) Plaintiffs' cause of action, which had to be filed within six years, began to run as of the time of their son's death, May 27, 1942. Their suit was not filed until May 6, 1955, a time-span from the date of death of twelve years, eleven months and twenty-one days.
Plaintiffs, however, filed a claim with the Veterans Administration of January 17, 1947, and it is conceded that until there has been a final disposition of this pending claim, the statute of limitations is suspended. The Government contends that the date of denial by the Board of Veterans Appeals was October 24, 1952, and while this would result in a suspension of the suit of five years, nine months and seven days, plaintiffs' suit would still be filed some fourteen months too late. Plaintiffs argue that no final disposition was made -- which would start the statute of limitations running once more -- until January 28, 1954, and, therefore, the suit was filed in time.
The evidence discloses that plaintiffs first filed a claim for their son's insurance on January 17, 1947. It was denied in December, 1951, and plaintiffs appealed. This appeal was denied and plaintiffs were so notified on October 24, 1952 -- the date the Government contends was the final disposition of the claim. This letter informed plaintiffs that their claim was denied because they 'have not shown that they had an income inadequate for their reasonable support and maintenance at the time of the serviceman's death', and, therefore, they 'are not shown to have been dependent as of the date of the serviceman's death.'
The Veterans Administration, on February 11, 1953, answered as follows:
'* * * The decision of the Board of Veterans' Appeals in affirming the denial of your claim for gratuitous National Service Life Insurance is final based on evidence then of record and your claim may not be reopened unless you have new and material evidence to present to the Veterans Administration that would prove your dependency for the above period and which evidence you have not heretofore furnished the Veterans Administration in support of your claim. Upon receipt of any new and material evidence concerning your income status for the above period prompt consideration will be given your claim for gratuitous National Service Life Insurance.'
As a result of this letter, female plaintiff furnished a medical certificate attesting to the sickness of her husband during the period in question and an affidavit from her brother, Jose Hate, from whom plaintiffs had borrowed $ 500.
On May 28, 1953, the Veterans Administration sent the following letter:
'* * * It is noted that you previously appealed to the Board of Veterans Appeals in connection with the disallowance of your claim for gratuitous National Service Life Insurance as dependent parent and that the Board denied your appeal on the ground that you were not dependent at the time of the veteran's death. The evidence which you have submitted has been carefully considered together with all the other evidence on record and it is hereby determined that no change in the prior disallowance of your claim for insurance is warranted.'
Plaintiffs then submitted certificates of the Provisional Treasurer and Register of Deeds to prove they did not own any real property. female plaintiff also submitted her own affidavit and the affidavit of a disinterested party.
On January 28, 1954, the Veterans Administration sent a letter to plaintiffs, the last sentence of which is as follows:
'The additional evidence submitted by you has been carefully considered together with all other evidence of record and it has been determined that no change in the prior ...