Hawkins v. Hawkins

• Decision Date: 23 November 1959
• Docket Number: No. 17775.,17775.
• Citation: 271 F.2d 870
• Parties: Imajean HAWKINS, Appellant, v. Bertha Lue HAWKINS et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

271 F.2d 870 (1959)

Imajean HAWKINS, Appellant, v. Bertha Lue HAWKINS et al., Appellees.

No. 17775.

United States Court of Appeals Fifth Circuit.

November 23, 1959.

Donald B. Howe, Buchanan, Ga., James I. Parker, Cedartown, Ga., Howe & Murphy, Buchanan, Ga., for appellant.

W. Wallace Shafer, Lakeland, Fla., Robert F. Nunez, Tampa, Fla., Bentley, Shafer, Miller & Sinder, Lakeland, Fla., for appellee.

Before RIVES, Chief Judge, and TUTTLE and BROWN, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a summary judgment in favor of a former wife of a serviceman to whom the trial court awarded the proceeds of a National Service life insurance policy as against the second wife to whom he was married at the time of his death. The United States appeared in the litigation merely in the guise of a stakeholder.

The deceased veteran Hawkins was married to Bertha Lue when he took out the insurance policy on August 1, 1950. He named Bertha Lue and his son, Gary, equal beneficiaries, subsequently, on August 28, 1950, in accordance with the requirements of the contract of insurance, by notice in writing to the Veterans Administration, Hawkins executed a change of beneficiary whereby Bertha Lue was named as sole primary beneficiary. In September, 1951, Hawkins obtained a divorce from Bertha Lue on the grounds of adultery, and the court granted him custody of their two children. Subsequently Berth Lue caused the court to grant her custody of the children on June 25, 1954, but Hawkins followed this by causing the court, on July 1, 1954, to vacate the said order as having been obtained by fraud, and the children were again awarded by court order to Hawkins.

In the meantime, on June 1, 1954, Hawkins married Imajean. The insured serviceman died in Germany on March 22, 1955. On that date there were no records either in the Veterans Administration or in the Department of the Army of any written request by Hawkins for a change of beneficiary from his divorced wife to Imajean.¹

Prior to his embarkation for overseas duty on September 15, 1954, the serviceman executed Department of the Army AGO Form 41, captioned "Record of Emergency Data for the U.S. Army." It furnished the name of Hawkins' then wife, Imajean, her address, the names of his children and others to be notified in event of his death. It then provided, in completion of the following printed form:

"In the Event that I Am Not Survived by Spouse or Eligible Child, or if Their Decease or Disqualification Occurs Before Payment of the 6 Months Gratuity, I Then Desire that Payment be Made to the Dependent Relative Shown Below:

"Imajean (NMN) Hawkins * * Wife." (Emphasis added.)

Further down, after a provision of space for listing commercial life insurance companies which he wished to have notified (which he completed by entering "None") there was the following printed matter:

"In the Event that I Am Listed as Missing, or by Other Military Circumstance Am Unable to Transmit Funds to My Dependents, it is My Desire that —

16. First Name — Middle Name — Last Name Relationship Imajean (NMN) Hawkins Wife Address (Number, Street, city, and state) Receive each month Route No.1 Ben Hill, Ga. 100% of my pay Military Address Date Received Co.S 1264th SU o/s Repl Stat 14 September 54 Cp. Kilmer, N. J. /s/ J. C. Hawkins"

Sergeant Hawkins had previously filed such a form in which he had designated Bertha Lue as the intended recipient of his six months gratuity, if he was killed. It is clear therefore that the filing of this form revoked such designation for Bertha Lue and made provision for Imajean. However, this six months gratuity is payable only to surviving spouse if there is one, and thereafter only to other specified dependent relations, such as children, etc. in the order prescribed in the statute, and under no circumstances would Bertha Lue be entitled to the gratuity even though the new form had not been filled out since she was no longer the soldier's wife. It is not clear, therefore, what purpose was served by the filing of this form. In support of her motion for summary judgment Bertha Lue attached an official copy of the decision of the Board of Veterans Appeals of the Veterans Administration resolving the contest here in favor of Imajean. This report outlines the evidence of Hawkins' intent to cause the proceeds of the policy to go to Imajean rather than to the divorced wife and this intent was also averred by affidavits attached to Imajean's answer to the motion for summary judgment. This evidence, as recited in the findings of the Board of Veterans Appeals is:

"* * * Information from an official source shows that in September 1952 the veteran applied for a discharge from service in order to be reunited with, and establish a home for, his two children, Gary and Patricia. In connection with this request, the veteran asserted that he had received a divorce from Bertha after she had deserted the children while he was overseas, and that the children were living with friends, Mr. and Mrs. Newman Freeman. Other evidence in file is to the effect that after the veterans\' remarriage, Gary and Patricia lived for a time with the appellant, and that prior to his death in Germany the veteran had taken action to have all three of his children and the appellant join him in Germany.

* * * * * *

"The appellant has furnished a letter written to her by the veteran on September 17, 1954, in which he expressed deep affection for her and stated in part that he had just authorized an allotment payable to her. * * * Sworn testimony was adduced to the effect that on occasions the veteran had expressed the thought that in the event of his death, the appellant would be well `taken care of.\' Newman Freeman executed an affidavit in behalf of the appellant, stating therein that in about December 1954, just prior to going overseas, the veteran expressed himself to the effect that he had effected a change of beneficiary in favor of the appellant with respect to his Government insurance. The veteran\'s mother has also set forth under oath that about December 1954 or early January 1955 the veteran told her he had `changed everything to Imajean.\'"

An affidavit signed by a former fellow soldier avers that Hawkins told him that his wife, Imajean, was his Government insurance beneficiary.

A counter affidavit by Bertha Lue stated that in August, 1954 (less than two months after Hawkins had caused a custody order in favor of Bertha Lue to be set aside for fraud), Hawkins told her he had not changed the beneficiary provisions of his life insurance because he wanted her to have funds to rear their two children in the event of his death. This, then, created an issue as to his intent.

This Court has had frequent occasion to pass on the sufficiency of the proof of substantial compliance with the change of beneficiary provisions of National Service life insurance policies. The Court early said in Mitchell v. United States, 5 Cir., 165 F.2d 758, at page 760:

"The cases are unanimous that in war-risk insurance cases involving change of beneficiary the courts will brush aside all legal technicalities in order to effectuate the manifest intent of the insured; and that if he manifests an intent to make a change and has done everything reasonably within his power to accomplish his purpose, leaving only ministerial acts to be performed by the insurer, the courts will treat that as done which ought to have been done and give effect to the insured\'s intent. The cases are also unanimous that a mere intent to change a beneficiary is not enough. Such an intent must be followed by some affirmative act on the part of the insured evidencing an exercise of the right to change the beneficiary. Where the courts differ is as to the degree of affirmative action necessary to effect a change. Literal compliance with the provisions of a policy is never necessary."

However, the rigor of the requirement as to proof of subsequent act was greatly relaxed in a further statement by the Court on page 761 of the opinion. There it was said:

"* * * It is said that a combination of intent and act is required, but to say in these insurance cases that though intention to change the beneficiary is proved to the hilt, no effective formal act having been done no change can be held

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