Johnson v. White, 8653.

• Decision Date: 06 February 1930
• Docket Number: No. 8653.,8653.
• Citation: 39 F.2d 793
• Parties: JOHNSON v. WHITE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

39 F.2d 793 (1930)

JOHNSON v. WHITE et al.

No. 8653.

Circuit Court of Appeals, Eighth Circuit.

February 6, 1930.

R. W. Robins, of Conway, Ark., for appellant.

John E. Miller, of Searcy, Ark. (Culbert L. Pearce, of Searcy, Ark., on the brief), for appellee.

Before STONE and GARDNER, Circuit Judges, and MILLER, District Judge.

GARDNER, Circuit Judge.

Appellant, as plaintiff below, brought this suit in equity against the United States and the defendant Esther Johnson White, for the purpose of recovering upon a policy of war risk insurance. A reformation of the policy was prayed, and a recovery thereon as so reformed.

It is alleged in the bill of complaint that on July 12, 1918, the defendant, United States of America, issued and delivered to Fred C. Johnson a policy of war risk insurance, insuring his life in the sum of $10,000 and agreeing that upon his death it would pay to such beneficiary, as might be designated by him, the sum of $10,000. That when the policy was taken out by Fred C. Johnson he was a single man, and the defendant Esther Johnson White was also then unmarried, and that Fred C. Johnson caused the defendant Esther Johnson White, who was his sister, to be designated as beneficiary in the policy. That thereafter Esther Johnson White married, and said Fred C. Johnson married the plaintiff.

It is then alleged that the insured went before the proper officers of the defendant United States and gave directions in the proper manner for changing the beneficiary so that the insurance should be made payable, in the event of his death, to the plaintiff, his wife, instead of the defendant Esther Johnson White, and that the insured was informed and advised by said officers that the change of beneficiary, as directed by him, would be made; and that shortly thereafter the insured became ill and continued ill until his death on January 1, 1919. That it was the intention of the insured, often expressed by him in conversations and letters, and as expressed in directions given by him to the proper officers of the United States, that the plaintiff should be the beneficiary under said policy.

These allegations of the complaint, to the effect that the insured intended to change the beneficiary in his war risk insurance, or that he gave directions for such change, were put in issue by the separate answer of the defendant Esther Johnson White. The answer of the United States is not material to the issues presented on this appeal.

By an amendment to her answer the defendant Esther Johnson White pleaded that the plaintiff's action was barred by the five-year statute of limitations, and, by an amendment the United States, pleaded that the sum of $6,382.50 had been paid to the defendant Mrs. Esther Johnson White as beneficiary, and further that, under the terms of the war risk insurance policy, monthly installments of $57.50 would be payable to the beneficiary until 240 monthly installments will have been paid, or until the beneficiary's death.

It was stipulated that in the event the court should find the plaintiff entitled to recover, the judgment, in so far as it affects the defendant United States of America, should be for only such installments of the insurance involved as had not already been paid to the defendant Esther Johnson White.

On trial of the suit decree was entered dismissing plaintiff's complaint, and from this judgment she prosecutes this appeal.

Fred C. Johnson was inducted into the United States Army on June 24, 1918, as a private soldier, and on January 1, 1919, while still in the service, he died. On July 12, 1918, a policy of war risk insurance was issued to him insuring his life in the sum of $10,000, and, being then a single man, he designated Esther Johnson, his sister (now Esther Johnson White) as beneficiary in the policy. Thereafter he ran away from Camp Pike, Ark., where he was stationed, without leave, and when so absent without leave on September 16, 1918, married the plaintiff, who survives him. At the time of this marriage the policy had not yet been delivered. It appears without dispute that prior to the time of his marriage he told the plaintiff that he would have the policy changed so that it might be payable to her, and he repeated this to her after their marriage. Under date October 17, 1918, the insured wrote the plaintiff, from Camp Pike, Ark., where he was then in the guardhouse as punishment for having left the camp without leave, to marry the plaintiff, as follows: "My darling little girl. How is my little wife tonight? Fine I hope. I am just fine. As I told you, I am going to have my policy changed from Esther to you for it is my will and wish for you to have it. I told Orby (a brother) to watch the mail box and send it to me for I want you to have it." In a later letter, dated November 4, 1918, addressed to the plaintiff, the insured said: "Say dear I gess you will get your alonting in little while. I am still trying to change my insurance to you." Orby Johnson, referred to in the above-quoted letter, was called as a witness on behalf of the defendant and on cross-examination admitted that he had received a letter from the insured instructing him to watch the mail box and get the policy of insurance when it came. This he says he did not do because the policy was delivered and he did not get to see it. It was shown by conclusive proof that prior to the trial this witness had stated in an affidavit that the insured wrote him and his wife to go to his sister, the defendant Esther Johnson White, and get the policy and send it to the insured so that he could have it changed to his wife, but that before he (the witness) could secure the policy and get it to him, the insured died.

The insured made statements to his father and mother and apparently to at least two of his brothers, indicating either that he intended to change his policy so as to name his wife as beneficiary, or that he had already done so. A brother, Charles, testified that the deceased had told him that he had made repeated efforts at the company headquarters to get his policy changed, and that "Fred (the insured) talked to me on his death bed about this insurance. He talked to me like he was under the impression that the insurance had been changed, or was in the hands of the company officers to change it." Oran Quattlebaum, who was at Camp Pike, Ark., with the deceased, states that he went with the deceased and one Earl Pickard to the company headquarters, where the deceased asked to have his insurance changed, and that he had said to the officer, "Well, I want this insurance policy changed." The officer then said, "Give us your wife's name and we will have it changed." The deceased then gave his wife's name and address to the company officer. That the deceased said he wanted the insurance changed from Esther Johnson to his wife.

Earl Pickard testified to practically the same incident. He says that the deceased told the officer that he wanted this insurance changed to his wife Vera, and that he left his wife's name and post-office address. The witness says, "I understood they told him if anything happened they would take care of it." Another witness, Allen Rusher, who was also a soldier stationed at Camp Pike at the time of this occurrence, testified that he had had a conversation with the deceased after his marriage, and that deceased had told him he wanted to change his war risk insurance to Vera Johnson his wife. This witness also testified that he saw the deceased when he was writing the letter of October 17, 1918, above set out.

With reference to some confusion which seems to have arisen as to the company in which the deceased from time to time belonged, the witness Earl Pickard said, "You know we were transferred like a bunch of sheep and did not know where we were." Another witness testified that "Soldiers were transferred from one company to another in such manner that you couldn't tell today what outfit you was going to belong to, for as soon as they got in a new bunch and they had a vacancy then sent them to it. I handled the transfers for the 40th battalion. You knew what company you were in today, but maybe you would not be in the same company tomorrow."

While the brief of appellee contains some suggestion that the letters above quoted may have been spurious, we think the suggestion is not warranted from the record, as practically all of the witnesses called were in position to have testified as to the handwriting, but none of them questioned its genuineness, so that it must be accepted as genuine.

The insured had the absolute right to designate, within the classes limited by the statute, the beneficiary in this policy and also to change the beneficiary if he saw fit so to do. The uncontradicted testimony is convincing that he not only desired and intended to make this change, but that he acted on this intention and attempted to effect such change.

There remains to consider only whether or not this intention was so expressed and acted upon that it can be made effective. It must be borne in mind that this young man was illiterate, apparently somewhat subnormal intellectually, inexperienced in matters of business, and that during all the time in question he was serving as a soldier. A part of the time, at least, he was in the guard house for having run away from camp without leave at the time he married plaintiff.

Shortly after his conversation with the company officers with reference to this insurance, he was transferred to Camp Mead near New York City. At a later time, not clearly shown, he returned to Camp Pike. He became sick about a month before he died, his death being due to influenza and spinal meningitis.

When the insurance was applied for he was unmarried, as was also his sister, and naturally enough he then designated her as the beneficiary. Later he was married to the plaintiff. The sister was neither actually, legally, nor morally a dependent upon him, whereas his wife...