Barksdale v. United States, 1071.

• Citation: 4 F. Supp. 207
• Decision Date: 02 July 1931
• Docket Number: No. 1071.,1071.
• Court: U.S. District Court — District of South Carolina
• Parties: BARKSDALE v. UNITED STATES et al.

4 F. Supp. 207

BARKSDALE v. UNITED STATES et al.

No. 1071.

District Court, W. D. South Carolina.

July 2, 1931.

James E. Taylor and Hicks & Johnston, all of Greenville, S. C., for plaintiff.

Joseph A. Tolbert, U. S. Atty., of Greenville, S. C., and J. C. Willcox, Acting Chief Atty., Veterans' Administration, of Columbia, S. C., for the United States.

Leon L. Rice, of Anderson, S. C., for defendants Lula Rochester and others.

WATKINS, District Judge.

By stipulation of counsel this case was submitted to me without a jury. There is practically no dispute as to the facts. The matter first came before me at Greenville during the April term of the court. At that time certain stipulated facts were admitted in the record and a limited amount of oral testimony was taken. Thereafter counsel for the government and for the plaintiff submitted written briefs. It is due to counsel to state that these briefs were unusually well prepared, stating the contentions of the parties with unusual force and clearness. Before the matter could be decided, counsel for certain of the individual defendants directed the attention of the court to the fact that he had failed to attend the trial on behalf of his clients through a misunderstanding and that certain minor defendants had not been properly before the court. Thereupon, these parties were properly brought before the court and a subsequent hearing of the cause was had at my office at Anderson, S. C., on June 30. By agreement all the testimony previously presented to the court was received as a part of the record and certain additional testimony was offered. This testimony, however, was of little consequence and served in no way to control a decision properly based upon the facts already in evidence. I find the facts to be as follows:

The plaintiff is a colored woman who at a very tender age married one Edgar Rochester some time prior to the year 1917. The said Edgar Rochester entered the military service of the United States during the month of October, 1917, was sent abroad, and died while in service, leaving of force a war risk insurance policy in the principal sum of $10,000, of which $5,000 was payable to plaintiff. Upon these facts the Bureau of War Risk Insurance began paying to the plaintiff as widow of the said deceased soldier the amounts payable under the terms of that policy. On December 18, 1920, more than a year after the soldier's death, the plaintiff, then being a widow, gave birth to an illegitimate child. This fact was reported to the local representative of the Red Cross organization, who in turn reported it to the Veterans' Bureau. In consequence of an investigation, the Veterans' Bureau discontinued the payment to plaintiff of the monthly installments of insurance payable to her as beneficiary under said policy on the ground that she was guilty of open and notorious illicit cohabitation and had thus forfeited her right to receive insurance benefits by virtue of the provisions of paragraph 5, § 22, of the War Risk Insurance Act, as amended, Act Oct. 6, 1917, § 2, 40 Stat. 400, and plaintiff now seeks recovery thereof. In the course of said investigation an examiner for the bureau took a statement from plaintiff in which she admitted the birth of the illegitimate child and in which she used the expression: "I have not been guilty of open and notorious illicit cohabitation though I confess that I have been guilty of the illicit cohabitation as mentioned in the said affidavit." In her affidavit plaintiff admitted sexual relations with one man for a period of about two months...