Hooper v. United States

• Decision Date: 10 May 1926
• Docket Number: No. 7086.,7086.
• Parties: HOOPER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

13 F.2d 19 (1926)

HOOPER et al. v. UNITED STATES.

No. 7086.

Circuit Court of Appeals, Eighth Circuit.

May 10, 1926.

J. A. Tellier and A. L. Barber, both of Little Rock, Ark. (Rogers, Barber & Henry, of Little Rock, Ark., on the brief), for plaintiffs in error.

Ira J. Mack, Asst. U. S. Atty., of Newport, Ark. (James T. Brady, Atty. U. S. Veterans' Bureau, of Washington, D. C., on the brief), for the United States.

Before LEWIS, Circuit Judge, and MUNGER and JOHNSON, District Judges.

LEWIS, Circuit Judge.

Austin L. Hooper and wife, plaintiffs in error, brought this action to recover from defendant in error the amount named in a War Risk Insurance certificate which had been issued to Nathan Nobles on September 12, 1918. Nobles was inducted into the service from his place of residence in the State of Missouri on September 6, 1918, having attained the age of 21 years on the 12th of the preceding month and died of influenza at Camp Merritt, New Jersey, on December 8, 1918, while he was in the military service of the United States. It is alleged in the complaint that Austin L. Hooper procured an order in the Probate Court of White County, Arkansas, on October 9, 1909, legally adopting Nathan Nobles, then twelve years of age, as his son, that his father and mother were then dead and since that time all of his blood relations have died, that the boy lived with plaintiffs in error from some time in the year 1908 until September, 1915, when he went to Missouri, that on two occasions, one in 1915 and one in 1916, he returned to plaintiffs in Arkansas for a while, then went back to Missouri in the Spring of 1917, and plaintiffs thereafter never saw him. The answer admits the allegations of the complaint as to Nobles being inducted into the military service, and that he applied for and there was granted to him War Risk Insurance in the sum of $10,000, and that he caused himself to be named as beneficiary in the certificate. It denied that Nobles had been legally adopted by Hooper. One J. J. Davis was permitted to intervene as claimant. He alleged that he was the true and lawful father of the deceased, that he had always recognized the deceased as his son and that he was entitled to recover the amount named in the certificate. These allegations were denied in the answer. Arch and Myrtle Pollard, residents of Pemiscot County, Missouri, were also permitted to intervene as claimants. They alleged that for more than one year prior to Nobles' induction into the military service they stood in the relation of loco parentis to him, that at the request of Nobles they took him into their home when he was homeless, sick and destitute, and cared for him until he went into the service on September 6th. They further alleged that Nobles died testate and that they were his legatees. These allegations were put in issue.

A jury was waived, the case went to trial on March 3, 1925, the court found, as alleged, that Nobles was enlisted in the military service on September 6, 1918, that on September 12, 1918, he applied for and was granted War Risk Insurance to the amount of $10,000, pursuant to the Act of Congress approved October 6, 1917 (40 Stat. 398), that he designated himself as beneficiary, that he died on December 8, 1918, when the certificate of insurance was in full force and effect, that he was a resident of the State of Missouri and that the plaintiff, Hooper, was not his adoptive parent. It was further found that the claimed order of adoption was a nunc pro tunc order, not made in open court and without hearing any evidence, and that it was undisputed that the order was not entered, and the Judge who signed it never saw it, until years after the boy sought to be adopted was dead, that the Pollards stood in loco parentis to the insured for more than one year prior to his entry into the military service, that they were not legatees; and it concluded that neither the plaintiffs nor the Pollards were entitled to recover. Davis did not appear at the trial. Judgment was entered in favor of the United States and the Hoopers brought the case here.

The War Risk Insurance Act, 38 Stat. 711, as amended by 40 Stat. 398, as amended by 41 Stat. 371, designates the beneficiary in case of a soldier's death. The relative parts read thus:

"The term `parent' includes a father, mother, grandfather, grandmother, * * * stepfather, and stepmother, either of the person in the service or of the spouse" (40 Stat. 401 Comp. St. § 514mmm); "the insurance shall be payable only to a spouse, child, grandchild, parent, brother, or sister" (40 Stat. 409 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 514uuu); "the terms `father' and `mother' include stepfathers and stepmothers, fathers and mothers through adoption, and persons who have stood in loco parentis to a member of the military or naval forces at any time prior to his enlistment or induction for a period of not less than one year" (41 Stat. 371 Comp. St. Ann. Supp. 1923, § 514mmm); "if no beneficiary within the permitted class be designated by the insured, either in his lifetime or by his last will and testament, or if the designated beneficiary does not survive the insured, the insurance shall be payable to such person or persons within the permitted class of beneficiaries as would under the laws of the State of the residence of the insured be entitled to his personal property in case of intestacy" (40 Stat. 410 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 514uuu).

When the trial opened plaintiffs in error first offered in evidence a certified copy of what they claimed to be the order of adoption of the Probate Court of White County, Arkansas, designated as Exhibit B. It reads thus:

"In the Matter of the Adoption of Nathan Noble.

"On this day is presented to the Court the petition of A. L. Hooper duly verified for the adoption of Nathan Noble, residing at Pangburn, Arkansas, in White County, Arkansas, of ____ years. And also appeared A. L. Hooper in person, and states upon oath that the father and mother of the said Nathan Noble are dead.

"And it appearing to the satisfaction of the Court that it will be for the best interest of the said Nathan Noble that he be adopted by the said A. L. Hooper, and it appearing that the mother and father of the said Nathan Noble are dead, it is therefore ordered by the Court that the said A. L. Hooper become, and he is hereby authorized to adopt the said Nathan Noble who shall henceforward take the name of Hooper, and shall be entitled to and shall receive all the rights and interest in the estate of the said A. L. Hooper, by descent or otherwise, that he would have if the natural heir of the said A. L. Hooper and the said A. L. Hooper shall be liable for the maintenance and education and in every other way responsible as the natural father of the said Nathan Noble. It is further ordered that the petitioner shall pay all cost herein.

"Given under my hand in open court as County and Probate Judge, of White County, this ____ day of October term, 1909.

"R. W. Chrisp, Probate Judge.

"Now on this day is presented the above and foregoing order of adoption of Nathan Noble, and it appearing that said order of adoption was duly made by R. W. Chrisp, County and Probate, but that same was not entered on the Probate records. Therefore said order is now ordered placed of record now for then, or Nunc Pro Tunc. Given under my hand this 8th day of Aug., 1921.

"F. O. White, County and Probate Judge."

This was objected to. Thereupon this occurred:

"Mr. Tellier: We are prepared to show the nunc pro tunc order is based on sufficient evidence, namely: an order unsigned found properly in the custody of the Court; and we have witnesses here who heard the order made; the counsel, Eugene Cypert was counsel for plaintiff is here, and when the order was made, and the plaintiff Hooper is here, who was present when the order was made. For some reason unknown to us the order was not signed when made, but remained in the files and was found in its proper place in 1921.

"The Court: But never entered?

"Mr. Tellier: Never was entered.

"The Court: The objection will be sustained.

"Mr. Tellier: Let the record show that we offered to prove by extrinsic evidence and parol evidence that the court in fact made the order of adoption which is offered in evidence, as Plaintiff's Exhibit B, and plaintiff saves exceptions to the ruling of the Court.

"The Court: Now wait a minute, this appears to have been signed by the Probate Judge.

"Mr. Tellier: Yes, your honor, but it was signed at the time the nunc pro tunc order was made. It was taken out in the country to the former probate judge's home. I treat that signature as surplusage; he wasn't in office but his term had expired."

L. T. Bell then testified. He was then and had been clerk of the probate court in White County for something over two years prior to the date of trial. He did not occupy that position in 1921. He was interrogated and testified as follows:

"Q. Mr. Bell, did you find the original order of adoption in the files regularly, if so at what time? A. Yes, sir, at the time — I forget the exact date, but somewhere near the 18th of February.

"Q. What year? A. 1921.

"Q. State the circumstances; how you came to find this order of court. A. I was asked to make the search, to make the certified copy of the original order as it appeared in the file, if in the office.

"Q. Have you the original unsigned order that you found in the files of the clerk? A. We have the original order, but it appears to be signed at the time I found it.

"Q. I show you a paper, and will you state what that is? A. That is the original order, signed at the time I found it; in the proper files.

"Mr. Tellier: Well, the explanation is as I stated a few minutes ago; it was conceived that the County Judge after term could sign the order; it was unsigned and left in the files, and so it was taken to the county judge who had gone out of office, and that...