Cassarello v. United States

• Decision Date: 28 February 1922
• Docket Number: 2760.
• Citation: 279 F. 396
• Parties: CASSARELLO v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

279 F. 396

CASSARELLO v. UNITED STATES.

No. 2760.

United States Court of Appeals, Third Circuit.

February 28, 1922

A. A Vosburg and William B. Landis, both of Scranton, Pa., for plaintiff in error.

Andrew B. Dunsmore, U.S. Atty., of Wellsboro, Pa., and John M McCourt, Asst. U.S. Atty., of Scranton, Pa., and Edward H Horton, Sp. Asst. U.S. Atty., of Washington, D.C.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON Circuit Judge.

On January 11, 1918, the United States, through its Bureau of War Risk Insurance, issued certificate of insurance No 1,753,749 on the life of Lawrence Siegel for $10,000, 'payable in case of death * * * in monthly installments. ' No beneficiary was named in the certificate, but it provided that certain obligations, 'together with the application for this insurance, * * * shall constitute the contract,' and the application thus embodied in the contract made the applicant's stepbrother, Patsy Gillette, his beneficiary. It further provided:

'In case any beneficiary die or become disqualified after becoming entitled to an installment, but before receiving all installments, the remaining installments are to be paid to such person or persons within the permitted class of beneficiaries as may be designated in my last will and testament, or, in the absence of such will, as would under the laws of my place of residence be entitled to my personal property in case of intestacy.'

The insured, Lawrence Siegel, died intestate on October 29, 1918, and Patsy Gillette, the beneficiary, died testate in April, 1919, at which latter date there were due Patsy Gillette accrued monthly installments on the certificate, aggregating some few hundred dollars, which sum it is conceded then became payable to his executor. The latter, however, not content with receiving said installments tendered him, brought suit in the court below to recover $10,000, the entire amount of said certificate. Jury was waived, and the case was tried by the judge, who found for the plaintiff for the installments accrued up to the time Patsy Gillette died, and against the plaintiff as to the balance of the claim, and entered judgment as follows:

'Judgment will be entered in favor of the plaintiff for the amount of installments due at the time of the death of the beneficiary. The clerk will enter judgment accordingly upon presentation of a calculation to this effect. As to the installments accruing subsequent, judgment is denied.'

Thereupon the plaintiff took a writ of error to this court, assigning for error (a) entry of the judgment; (b) the admissions in evidence of certain rules and regulations of the insurance department of the government; and (c) the admission in evidence of Lawrence Siegel's application for insurance. As the question raised by this last assignment underlies and is decisive of the whole case, we first turn to it.

Pursuant to our rule, which requires counsel to make 'a statement of the question or questions involved, which shall be in the briefest and most general terms, without names, dates, amounts or particulars of any kind whatever,' he sums up the question involved in these words:

'Where a copy of an application is not attached to a policy of war risk insurance, is the

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