Benard v. United States, 18288.

• Decision Date: 30 November 1966
• Docket Number: No. 18288.,18288.
• Citation: 368 F.2d 897
• Parties: Howard J. BENARD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

368 F.2d 897 (1966)

Howard J. BENARD, Appellant, v. UNITED STATES of America, Appellee.

No. 18288.

United States Court of Appeals Eighth Circuit.

November 30, 1966.

Marion F. Wasinger, of Carstarphen, Harvey & Wasinger, Hannibal, Mo., for appellant.

Robert V. Zener, Atty., Dept. of Justice, Washington, D. C., for appellee. John W. Douglas, Asst. Atty. Gen., Dept. of Justice, Alan S. Rosenthal and Walter H. Fleischer, Attys., Dept. of Justice, Washington, D. C., and Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., for appellee.

Before VOGEL, Chief Judge, and VAN OOSTERHOUT and LAY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by Howard J. Benard, named beneficiary in a National Service Life Insurance (N.S.L.I.) policy of $10,000 issued pursuant to 38 U.S.C. § 801 et seq., 1952 ed., to his son George C. Benard, from final judgment dismissing his complaint in which he sought to collect the proceeds of such insurance. Jurisdiction is established by 38 U.S. C.A. § 784. The trial court's opinion is reported at 248 F.Supp. 581.

The issuance and validity of the policy is not questioned. Death of the insured on April 19, 1962, is admitted and it is conceded the policy was in full force and effect at such time. The Government's defense is that the policy beneficiary was changed to Vincenza Benard, the soldier's widow, and that she has been paid the proceeds of the policy. The court properly found that payment to the widow was made after the Government had full knowledge of plaintiff's claim, that plaintiff did nothing to mislead the Government and brought this action within the period of limitations provided by 38 U.S.C.A. § 784(b), and hence the burden of overcoming plaintiff's prima facie case based upon plaintiff being the named beneficiary in the policy is upon the Government. See Willis v. United States, 7 Cir., 291 F.2d 5.

The issue presented by this appeal is whether the Government has established that the insured soldier had effectively changed his beneficiary from his father, the named beneficiary, to his wife. We hold that such burden has not been met. We reverse.

The trial court properly states the applicable legal standards as follows:

"Two conditions must be met before a change of beneficiary may be found. `First, the serviceman must have intended to change his beneficiary. Second, he must have done an overt act directed toward accomplishing his intent to change the beneficiary.\'" 248 F.Supp. 581, 583.

McCollum v. Sieben, 8 Cir., 211 F.2d 708, 712; Behrens v. United States, 9 Cir., 299 F.2d 662, 663; Lovato v. United States, 10 Cir., 295 F.2d 78, 79.

Upon the issue of intent, the trial court accepted the testimony of the widow, corroborated by Major Jones, that the insured intended to change the beneficiary to the widow. There is substantial conflicting evidence upon this issue. The trial court saw and heard the witnesses and was in a better position than we are to make credibility findings. There is substantial evidence to support the intent finding and we cannot say that the finding on the intent issue is clearly erroneous.

The difficult issue presented by this case is whether the insured performed an overt act directed toward the accomplishment of his intent to change the beneficiary. This issue has confronted many federal courts on numerous occasions. For an extensive collection of pertinent cases, see Annot. 2 ALR 2d 489 with later authorities collected in 1 ALR 2d Later Case Service, p. 142.

It is impossible to reconcile all cases which have dealt with the problem or to derive from such cases any uniform rule upon what is sufficient in the way of an overt act to effectuate the intent to change the beneficiary. Circumstances, such as serving on the battle front under war conditions and the mental capacity of the insured soldier, may have a bearing upon the result. It has frequently been said that each case must be determined upon the basis of its own facts. Behrens v. United States, supra; Coleman v. United States, 85 U.S.App.D.C. 145, 176 F.2d 469, 471.

We first look to the applicable statute and regulation for guidance. Title 38 U.S.C.A. § 749 provides:

"Change of beneficiary.

"Subject to regulations, the insured shall at all times have the right to change the beneficiary or beneficiaries of a United States Government life insurance policy without the consent of such beneficiary or beneficiaries."

The regulation promulgated pursuant to the foregoing statutory authority provides:

"(b) A beneficiary designation shall be made by notice in writing to the Veterans\' Administration, signed by the insured. * * *

"The insured shall have the right at any time, and from time to time, and without the knowledge or consent of the beneficiary to cancel the beneficiary designation, or to change the beneficiary, * * * A change of beneficiary to be effective must be made by notice in writing signed by the insured and forwarded to the Veterans\' Administration by the insured or his agent, and must contain sufficient information to identify the insured. Whenever practicable such notices shall be given on blanks prescribed by the Veterans\' Administration. Upon receipt by the Veterans\' Administration, a valid designation or change of beneficiary shall be deemed to be effective as of the date of execution: * * *" 38 C.F.R. §§ 8.46, 8.47.

Parents and spouses are within the permitted class of beneficiaries. The regulations pertaining to change of beneficiary are quite liberal. While the beneficiary change on a prescribed form is recommended, the use of the form is not required. Any written notice signed by the insured and placed in proper channels to reach the Veterans' Administration would effectively result in a change of beneficiary and the change will become effective as of the date of the notice even though the notice is not received until after the insured's death.

All courts have shown a disposition to be as liberal in carrying out the insured's intent as the statutes and regulations will permit. Some cases, as pointed out in the annotations, supra, appear to accept almost anything as a required affirmative act if satisfied as to the intent, and in practical effect come at least close to dispensing with any need of proof of an overt act directed at effecting the change. Most courts, however, feel that the provisions of the statute and regulations cannot be completely brushed aside and that some affirmative action directed toward implementing the intent is required.

In Kell v. United States, D.C.W.D. La., 104 F.Supp. 699, 703, aff'd 5 Cir., 202 F.2d 143, the trial court aptly observes:

"We analyze and compare cases; this is a part of the science of jurisprudence. The question at issue here is when has there been and when has there not been a change of beneficiary. The only safe procedure for the Court is not to lose itself in the analysis of cases; it should, once in a while, come back to the statute and the regulations thereunder — not to be led astray therefrom by the charity of expression by which a Court may be moved in each case of this character.

* * * * * *

"Seriously, what is the more to be condemned is that the Court is legislating when it leaves the clear and unambiguous meaning of the statute and the regulations. Step by step, case by case, one gets further and further away from the statute and the regulations; until they are all but gone!"

Cohn v. Cohn, 84 U.S.App.D.C. 218, 171 F.2d 828, 829, points out, "the requirement that there be a writing is the minimum necessary to protect the public, the families and loved ones of servicemen and the interests of the deceased insured veterans themselves against unmitigated fraud. Not only is the requirement reasonable, but it is necessary."

In Bradley v. United States, 10 Cir., 143 F.2d 573, 576, insured's mother was the named beneficiary. In a confidential report filed by the insured at group headquarters, it is stated that the wife is beneficiary of the Government insurance. The court held that such document was not designed as a notice contemplated by the statute or regulations relating to change of beneficiary and that it did not contain any expression of a desire or intention to change the beneficiary but at most indicated a belief or understanding that the wife was the beneficiary. The court conceded that the evidence established an intent to change the beneficiary, and then goes on to say:

"But the principle which actuates the courts in giving effect to the ascertained intentions of the insured has application only where the party has attempted to act for himself. The expressed intention of the insured to change the beneficiary, standing alone and unaccompanied by some affirmative act, having for its purpose the effectuation of his intention, is insufficient to effect a change of beneficiary and the courts cannot act when he has not first attempted to act for himself."

Cases holding that sufficient affirmative action had not been taken by the insured to effectuate a change of beneficiary include Willis v. United States, 7 Cir., 291 F.2d 5; Kluge v. United States, 4 Cir., 206 F.2d 344; Littlefield v. Littlefield, 10 Cir., 194 F.2d 695; Butler v. Butler, 5 Cir., 177 F.2d 471; Coleman v. United States, 85 U.S.App. D.C. 145, 176 F.2d 469.

This court has considered the problem of what is necessary to bring about a change of beneficiary in a N.S.L.I. policy on a number of occasions. In Johnson v. White, 8 Cir., 39 F.2d 793, a change of beneficiary from...