Baker v. United States, 24000.
Decision Date | 13 November 1967 |
Docket Number | No. 24000.,24000. |
Citation | 386 F.2d 356 |
Parties | Mary L. BAKER, Appellant, v. UNITED STATES of America and Caroline S. Gardenhire, Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
Erwin A. Friedman, Nelson Haslam, Friedman, Haslam & Weiner, Savannah, Ga., for appellant.
W. Reeves Lewis, Asst. U. S. Atty., Richard T. Cowan, Cowan, Zeigler, Downing & McAleer, Savannah, Ga., for appellees.
Before BROWN, Chief Judge, SIMPSON, Circuit Judge, and SUTTLE, District Judge.
Appellant, the divorced wife of an insured, deceased serviceman, brought this action to recover the proceeds of a National Service Life Insurance policy, as the last named beneficiary in the policy, against the United States1 and Caroline S. Gardenhire, the insured's mother, a claimant to such proceeds. The Veterans Administration Board of Veterans Appeals had determined that the beneficiary had been changed and that the mother, appellee, was entitled to the proceeds.
The undisputed evidence at the trial shows that Caroline S. Gardenhire was the designated beneficiary of the policy when it was issued in 1942, and was redesignated such in 1951. The insured serviceman, Malcolm H. Gardenhire, married the appellant in March, 1956, and designated her the new beneficiary of the policy the following May, by use of the correct form furnished for that purpose by the Veterans Administration. This was the last written notice of a beneficiary designation received by the Veterans Administration on this policy, and was in effect when the insured died August 23, 1960. In June, 1958, the appellant and deceased were divorced. On April 5, 1960, Malcolm H. Gardenhire executed Air Force Form 246-3, entitled "Record of Emergency Data," in which he designated the appellee as beneficiary for certain gratuity pay, unpaid pay and allowances, and allotment, if any. In the space where the deceased was to have listed "Insurance Policies in Force — Including NSLI * * *," the word "NONE" was entered.
At the close of the evidence appellant moved for a directed verdict. The District Court excused the jury, and announced that he would decide the case on briefs.2 The court then held that the mother (appellee) was entitled to the proceeds of the policy, concluding as a matter of law that:
The divorced wife contends here that the court below erred in overruling her motion for directed verdict and in entering judgment for Caroline S. Gardenhire, in that there is no evidence of any affirmative action on the part of the deceased to change or attempt to change the beneficiary of his National Service Life Insurance. We agree.
Title 38 U.S.C. § 717(a) provides that the insured shall, subject to regulations, at all times have the right to change the beneficiary of his National Service Life Insurance without the consent of such beneficiary. The regulation promulgated pursuant to the foregoing statutory authority provides in part:
* * *"3
All courts have shown a disposition to be as liberal in carrying out the insured's intent as the above statute and regulation will permit. This court early adopted the now universal rule in Mitchell v. United States, 165 F.2d 758 (5th Cir. 1948), and in so doing stated the law as it existed at that time. There it was recognized that:
165 F. 2d at 760.
This remains the state of the law today. Some cases appear to require no more than some act corroborating the insured's intent, in practical effect coming close to dispensing with any need of proof of an overt act directed at effecting the change of beneficiary. On the other hand, some courts require the insured to do everything reasonably within his power, leaving only ministerial acts to be performed to effect the change.4
This court appeared to adopt the latter rule in Mitchell v. United States, supra, at p. 760, but went on to affirm a trial court's determination that a change had been made, based on the insured's stating, in a "Government Insurance Report Form," that his wife was the beneficiary, holding this to be "strong, almost incontrovertible, evidence of a change."5 This court went furthest toward the "liberal" view in Gann v. Meek, 165 F.2d 857 (5th Cir. 1948) where the court, one judge dissenting, upheld the judgment of the trial court, which found a change in beneficiary based on a letter from the insured, mailed in combat conditions, to his brother, in which the serviceman said: "I did change my insurance if any one gets it Mom will get it all."6 This case has been limited to its particular facts by Butler v. Butler, 177 F.2d 471, 472 (5th Cir. 1949) and the court has since tended toward requiring clear and unequivocal affirmative action directed toward implementing, and for the purpose of effectuating the intent of an insured with regard to changing a National Service Life Insurance beneficiary.7
While this is not the proper case in which to attempt a synthesis of these cases and set down a definite minimum degree of affirmative action which is to be required, we do feel strongly that the provisions of the statute and regulations cannot be completely brushed aside and that the requirement of some affirmative action directed toward implementing the intent must be firmly maintained. In Kell v. United States, 104 F.Supp. 699, 703 (W.D.La.1952), aff'd 202 F.2d 143 (5th Cir. 1953), the trial court made these observations, perhaps for us then and in the future:
Whatever degree of affirmative action should be required, there is no evidence in the record in this case that the insured did anything in the way of an affirmative act which was designed to and reasonably thought by him to effectuate a change in beneficiary of his National Service Life Insurance policy.
The court below and the appellee here rely on the "Record of Emergency Data" form, completed by the deceased five months before his death, as being an affirmative act by him designed to effectuate his intent with regard to the beneficiary of his insurance. It is our view that by placing the word "NONE" under the heading "Insurance Policies in Force," the insured negatived any possible basis for an inference that might arise to the effect that he was thereby intending to change his insurance beneficiary.9 Viewed most favorably for appellee, the form shows no more than that the deceased wanted his mother to have the benefits named therein and that he did not remember having any insurance. He was entitled to the benefits for which he named his mother beneficiary and the designation on this form was effective for that purpose.10 There is no evidence that the insured thought this form was for the purpose of designating any other benefits, including a beneficiary to National Service Life Insurance.11 On the contrary, statements made after this form was filled out, which were introduced at the trial by appellee herself, show that he knew he had the insurance and that some act besides what he had already done needed to be performed before his mother would definitely receive the proceeds.12 Nor is this a case in which the evidence of intent is conclusive, and hence requires only an equivocal act consistent with that intent.13 The evidence of intent is conflicting, and the completion of the Air Force Form 246-3 in the manner in which it was can hardly be seen as constituting an affirmative act by the insured for the purpose of changing the beneficiary to his National Service Life Insurance policy, when the uncontroverted evidence introduced by appellee shows he knew he had not effectuated whatever intent he had.14
Upon the record before us, we hold that the appellee, Caroline S. Gardenhire, has as a matter...
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...271 F.2d 870. Where evidence of intent is conflicting, the quantum of proof as to the necessary act is greater. See Baker v. United States, 5 Cir., 1967, 386 F.2d 356." 421 F.2d at As noted above, deceased's executing a designation form which he is not shown to know was effective to divest ......
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Jones v. United States, Civ. A. No. 476.
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Smith v. United States, 28091 Summary Calendar.
...271 F.2d 870. Where evidence of intent is conflicting, the quantum of proof as to the necessary act is greater. See Baker v. United States, 5 Cir., 1967, 386 F.2d 356. In Baker, as in the instant case, the court was concerned with a "Record of Emergency Data" form. There, however, there was......