Criscuolo v. United States, 12052.

• Decision Date: 27 December 1957
• Docket Number: No. 12052.,12052.
• Citation: 250 F.2d 388
• Parties: Elizabeth Kley CRISCUOLO, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellee, and Audrey Schmuck Zoch Linde, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

250 F.2d 388 (1957)

Elizabeth Kley CRISCUOLO, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellee, and Audrey Schmuck Zoch Linde, Defendant-Appellant.

No. 12052.

United States Court of Appeals Seventh Circuit.

December 27, 1957.

James E. Hastings, Michael A. Gerrard and Erving S. Sternberg, Chicago, Ill., for appellant.

Clarence Kammermann, Robert Tieken, U. S. Atty., Chicago, Ill., for appellees.

Before DUFFY, Chief Judge, and LINDLEY and PARKINSON, Circuit Judges.

LINDLEY, Circuit Judge.

In Criscuolo v. United States, 239 F. 2d 280, we held that the evidence before the district court was sufficient to establish a change of beneficiary in a National Service Life Insurance policy. Plaintiff, the mother of the insured, the original named beneficiary, had asserted a claim to the proceeds of the policy. The widow of the deceased claimed that a change of beneficiary had occurred, and presented testimony in an effort to show (1) that there had been an intent on the part of the insured to change the beneficiary and, (2) that an affirmative act, supporting such intent, had been proved. See Moths v. United States, 7 Cir., 179 F.2d 824; Prose v. Davis, 7 Cir., 177 F. 2d 478.

At the original trial, upon conclusion of the widow's evidence, the district court granted plaintiff's motion to dismiss and entered judgment in her favor, saying: "Witnesses were produced in support of the widow's claim but the evidence fell far short of establishing the fact that a change in the beneficiary had been made." 239 F.2d 281.

In our opinion, upon a review of the evidence, we concluded that there was ample proof of an intent on the part of the insured to substitute his wife as the beneficiary under the policy, and that the testimony of Leonard Yelvington was sufficient to satisfy the affirmative act requirement. We added (239 F.2d at page 283): "Here we think the soldier's intention was clearly proved as well as the affirmative act which he took to make the change effective." We reversed "with directions to enter judgment in favor of the defendant Audrey Schmuck Zoch Linde."

On petition for rehearing, it was pointed out that plaintiff had been denied the opportunity of presenting any evidence, inasmuch as the appeal by the widow of the insured was from a judgment entered upon a motion to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 28 U.S.C.A. The petition specifically requested that the cause be remanded in order that plaintiff might have an opportunity to present her evidence. Rule 41(b) specifically provides that the presentation of a motion to dismiss does not constitute a waiver of the right to offer evidence. Based upon this rule, we concluded that plaintiff had in no way waived her right to present evidence. Consequently, as plaintiff was entitled to have her day in court, we modified the last sentence of our opinion to read as follows: "Judgment reversed and remanded for further proceedings not inconsistent with this opinion", and incorporated this latter direction in the mandate. Obviously, our sole purpose in thus modifying our opinion was to allow plaintiff to present evidence which might discredit, contradict, or overcome the testimony presented by the widow, Audrey Linde, which, we...