Benard v. United States

• Decision Date: 09 November 1965
• Docket Number: No. N 64 C 32.,N 64 C 32.
• Parties: Howard J. BENARD, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

248 F. Supp. 581

Howard J. BENARD, Plaintiff, v. UNITED STATES of America, Defendant.

No. N 64 C 32.

United States District Court E. D. Missouri, N. D.

November 9, 1965.

Carstarphen, Harvey & Wasinger, Hannibal, Mo., Paul E. Williams, Bowling Green, Mo., for plaintiff.

Richard D. FitzGibbon, Jr., U. S. Atty., Stephen H. Gilmore, Ass't U. S. Atty., St. Louis, Mo., for defendant.

REGAN, District Judge.

This is an action by Howard J. Benard, the named beneficiary in a National Service Life Insurance policy issued by the Government of the United States upon the life of George C. Benard, plaintiff's natural son, seeking recovery of the lump sum payment of $10,000 provided for by said policy. The case was tried to the Court without a jury. We have jurisdiction by virtue of Section 784, Title 38 U.S.C.

The issuance of the policy, and the death of George C. Bernard on April 19, 1962, while the policy was in full force and effect are admitted. It is also admitted that plaintiff filed a claim for the proceeds of the policy with the Veterans Administration, an agency of the United States government, that the Veterans Administration has refused to pay the proceeds of the policy to the plaintiff, and that plaintiff has exhausted his administrative remedies.

The deceased, George C. Benard, entered military service in the early part of 1948 at the age of sixteen years. Shortly thereafter he applied for and was issued the policy in suit, which named his father as principal beneficiary and his mother as contingent beneficiary. In May of 1952 he married Vincenza Intrepido in Trieste, Italy, and they lived together as man and wife until he was killed in a helicopter accident.

On April 29, 1962, his widow filed a claim for the proceeds of the policy. Plaintiff's claim was filed June 16, 1962. An administrative determination was made that the widow was the beneficiary, disallowing plaintiff's claim. On December 13, 1963 plaintiff was notified of this decision and of the intention of the Veterans Administration to pay the policy proceeds to the widow unless notified within sixty days of his intent to institute appropriate legal action under Section 784, Title 38 United States Code. On February 10, 1964, after receiving notice of plaintiff's intention to file suit, the Veterans Administration notified plaintiff that unless suit was filed within sixty days the settlement with Mrs. Benard would be made. Again on May 18, 1964, plaintiff was notified that such settlement would be effected unless suit was filed within the next 60 days. The present action was filed on December 14, 1964. In the meantime on July 31, 1964, payment of the policy in full was made to the widow.

We mention the foregoing because the Government claims that since plaintiff had knowledge of its intention to pay the policy proceeds to Mrs. Benard unless plaintiff brought suit within the period specified by the Veterans Administration, plaintiff is estopped from bringing suit after the expiration of such period. We disallow this defense. The action was brought well within the period of limitations provided by statute, and there is no authority vested in the Veterans Administration to shorten the time allowed. Plaintiff took no affirmative action which could have misled the Government. And since its letter of February 10, 1964, discloses that the Veterans Administration had actual notice of plaintiff's intention to file suit, there is no reason the Government could not have filed an interpleader action pursuant to Section 784(a) Title 38 U.S.C. and thereby have avoided its self-made dilemma.

The meritorious issue for decision is whether the insured changed the beneficiary of his policy. If so, plaintiff is not entitled to recover. The burden to establish a valid change of beneficiary is upon the one asserting and relying upon such change. The Government paid the policy amount to Mrs. Benard, the widow, thereby making it unnecessary in this case for her to sustain the burden which would have rested on her had an interpleader action been filed. By paying Mrs. Benard, the Government has placed itself in her shoes. Hence, the burden of overcoming plaintiff's prima facie case based upon the fact he is the named beneficiary in the policy when issued is upon the Government in this case. Willis v. United States, 7 Cir., 291 F.2d 5. As hereafter appears, we find and hold that the Government has sustained this burden.

There is no affirmative evidence that the insured ever strictly observed the government regulations in effecting a change of beneficiary. However, it is now well settled that "a serviceman may effectively change the designation of beneficiary of his National Service Life Insurance without strictly adhering to the procedures set out in government regulations." Behrens v. United States, 9 Cir., 299 F.2d 662, 663; Lovato v. United States, 10 Cir., 295 F.2d 78, 79; Bew v. United States, 4 Cir., 286 F.2d 570, 572. "Literal compliance with the provisions of a policy is never necessary." Mitchell v. United States, 5 Cir., 165 F.2d 758, 760, 2 A.L.R.2d 484.

In this situation the applicable rule as set forth in the reported cases is that 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." Behrens v. United States, 9 Cir., 299 F.2d 662, 663; Hartman v. United States, D.C.Mo., 78 F.Supp. 227, 233.

In Bratcher v. United States, 8 Cir., 205 F.2d 953, 955, it was said that the courts have dealt with the situation "hospitably and primarily from the standpoint of the insured, and have in general recognized changes in beneficiaries as having occurred whenever they have found some persuasive indication of an intent on the part of the insured to make such a change and some written step taken by him to that end as an assumed effectuative act."

We find from the evidence that it was clearly the intent of the insured to change the beneficiary of his policy and to make his wife Vincenza Intrepido Benard the beneficiary instead of his father who was originally named. The testimony of Major Lincoln Jones, corroborated by Mrs. Benard, convincingly demonstrates to us that the insured not only intended to change the...