Kell v. United States, Civ. A. 2596.

• Decision Date: 07 May 1952
• Docket Number: Civ. A. 2596.
• Citation: 104 F. Supp. 699
• Parties: KELL v. UNITED STATES et al.
• Court: U.S. District Court — Western District of Louisiana

104 F. Supp. 699

KELL v. UNITED STATES et al.

Civ. A. 2596.

United States District Court W. D. Louisiana Alexandria Division.

May 7, 1952.

W. T. McCain, Colfax, La., and J. Norman Coon, Monroe, La., for plaintiff.

Polk & Culpepper, Alexandria, La., for Davis.

William J. Fleniken, U. S. Atty., and Leland H. Coltharp, Jr., Asst. U. S. Atty., Shreveport, La., for United States.

PORTERIE, District Judge.

Ralph O'Dell Kell joined the United States Navy on September 10, 1943, and on that date named his mother as next of kin and his sister, Mrs. Davis, defendant herein, as beneficiary for the purposes of payment of the six months' death gratuity. On September 23, 1943, he obtained a National Service Life Insurance policy for the sum of $10,000 and designated his sister, Mrs. Davis, as his beneficiary.

Plaintiff's cousin, James Ferrier, was a shipmate of Kell aboard a destroyer, the United States Ship Monaghan (DD-354). In her correspondence with Ferrier, plaintiff sent him her picture, which Ferrier showed to Kell, and which developed a correspondence between plaintiff and Kell. In September of 1944 Kell and Ferrier obtained an annual leave from the USS Monaghan and both came to Montgomery, Louisiana — Ferrier's and plaintiff's hometown. Kell immediately met plaintiff and her parents and relatives and, after one week's courtship, they were married by a justice of the peace on September 15, 1944, and a day or so later by a priest in Montgomery, Louisiana, Kell and plaintiff being Catholics. Plaintiff and Kell were then 19 years of age. They lived together for approximately eight days after which time Kell returned to his ship at Seattle, Washington.

In a letter to plaintiff upon his return aboard ship, dated September 30, 1944, Kell wrote this:

"* * * I will tell you that I gave James Ferrier a good whipping for he made me come back to the ship two days early when I could have spent them at home with you. Honey I haven't had a chance to get the rings yet for we haven't been paid. I asked the paymaster if I could get a special sic paiday but he said he was busy and that he would let me know when ever I could get paid.

"I had my Insurance changed to your name. I am trying to get an allotment out but the pay master said I would have to write to Washington, D. C. so I sent a letter to them about 3 days ago so I should get an answer before long. Honey you had better have your name changed at the P. O. so you can get your mail under your real name. * * *" (Emphasis ours.)

Within a month after receiving this letter, plaintiff began to receive an allotment of $50 per month from Kell and the Government.

The record discloses that, since his letter of September 30, 1944, Kell wrote plaintiff four others, dated October 12, October 25, November 3, and December 7, 1944. It is only in his letter of September 30, 1944, immediately after his return to his ship from his honeymoon, that Kell ever mentions insurance. In none of the others of record does he say anything about it.

The smooth deck logs of the USS Monaghan shows its pertinent itinerary as follows:

Departed Seattle, Washington, on October, 1, 1944, and arrived at San Pedro, California, on October 4, 1944; departed San Pedro, California, on October 4, 1944, and arrived Pearl Harbor, T. H., on October 10, 1944; departed Pearl Harbor, T. H., on November 11, 1944, and arrived Eniwetok Atoll, Marshall Island, on November 18, 1944; departed Eniwetok, Marshall Island, on November 18, 1944, and arrived Ulithi Lagoon, Caroline Island, on November 21, 1944; departed Ulithi, Caroline Island, on November 30, 1944. The smooth deck log of the USS Monaghan for December, 1944, was lost when that vessel was sunk in a marine disaster.

The USS Monaghan and two other destroyers of a flotilla were sunk by a typhoon in the China Seas on December 18, 1944. Kell and all but six of the Monaghan's company or crew lost their lives in the catastrophe. Not one of these survivors knew anything about Kell's insurance.

The records of the Navy Department show that Kell had applied for and was receiving family allowance benefits for her. That Department timely notified plaintiff of her husband's death and later sent her the money due Kell for pay, subsistence, and transportation. Also, plaintiff receives a death pension as unremarried widow of Kell.

In the meantime, the Veterans Administration was paying the benefits under Kell's policy to the designated beneficiary, Mrs. Davis.

Plaintiff then made a demand upon the Veterans Administration for the benefits as beneficiary under Kell's policy on the basis of what Kell wrote to her on September 30, 1944. The Veterans Administration thereupon checked its files completely and had the Navy Department search out all of Kell's records and those of the USS Monaghan, etc., in order to ascertain whether or not Kell had actually changed his beneficiary. Finding no change, the Veterans Administration denied her claim:¹ Mrs. Davis was already paid $2,320.60 before the Government stopped payment to anyone pending the outcome of this action.

Contending that the sentence: "I had my Insurance changed to your name" in Kell's letter to her plus her evidence to the effect that Kell stated prior and after his marriage to her that he was going to make an allotment to her and make her the beneficiary under his policy is sufficient to change the beneficiary on his policy from his sister, Mrs. Davis, to herself, plaintiff sued the United States and Mrs. Davis to have such change declared judicially and to recover the benefits as beneficiary.

A motion by Mrs. Davis to dismiss was filed and the Court ordered the case tried on the merits to ascertain all facts. The case was tried without a jury. On her brief on the merits complainant submitted "* * that there should be Judgment in favor of the Plaintiff as prayed for less and except the amount that the Government has already paid under the policy." For that reason, the Government filed a "Memorandum to the Court"² admitting its liability for the overplus to whichever litigant prevails in this action and the Government now is a mere stakeholder.

The decisive issue now is whether plaintiff's evidence is sufficient to change the beneficiary, from that of the one designated, to herself, and thus entitle her to receive the balance due under the policy from the Government.

In order for plaintiff to prevail here as substituted beneficiary, she must prove by a preponderance of the evidence, (a) that Kell manifested a real intention to change the beneficiary originally named in his policy; and, (b) that Kell had done an affirmative act to effectuate that intention. Mitchell v. United States, 5 Cir., 165 F.2d 758, 2 A.L.R.2d 484; Shapiro v. United States, 2 Cir., 166 F.2d 240; Boring v. United States, 10 Cir., 181 F.2d 931, and cases there cited.

The proof of Kell's intention to change is conflicting.³ All doubt as to his intent is not removed by this letter of September 30, 1944, to his bride.⁴ The view we take regarding his alleged affirmative action to effectuate that assumed intention obviates the necessity of our resolving that conflict and deciding his intention as a fact, under all circumstances of this case.

For us to find as a fact that Kell took some affirmative action, we have to positively conclude, not only that what he wrote on September 30, 1944, to his bride was his intention and the truth, but also that the Executive Officer and the Paymaster then aboard the Monaghan and all personnel under their jurisdiction in dealing with beneficiary changes and the handling of the mail aboard the Monaghan were derelict in their prescribed duty of sending the original of the change, or the request to change, off the ship to the Veterans Administration office in Washington, D. C., while their ship was moored at Seattle, San Pedro, Pearl Harbor, etc., points which are, or practically are, in the United States and removed thousands and thousands of miles away from any battle area at that time. That there was mail service from the Monaghan for over two months after the letter of Kell of September 30, 1944, is proved by plaintiff's own exhibits.

The record is...