Mitchell v. United States, 12139.

• Decision Date: 14 January 1948
• Docket Number: No. 12139.,12139.
• Citation: 165 F.2d 758,2 ALR 2d 484
• Parties: MITCHELL v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Fifth Circuit

2 ALR 2d 484, 165 F.2d 758 (1948)

MITCHELL v. UNITED STATES et al.

No. 12139.

Circuit Court of Appeals, Fifth Circuit.

January 14, 1948.

A. Milling Bernstein, of Monroe, La., and Mark Callaway, of Brownwood, Tex., for appellant.

Howell H. Heard and J. Norman Coon, both of Monroe, La., for appellees.

Before HUTCHESON, HOLMES, and LEE, Circuit Judges.

LEE, Circuit Judge.

Appellee, Mrs. Rutledge, widow of Lieutenant Wayne T. Hardwick, brought suit against the United States and Mrs. Mitchell, the mother of Hardwick, to recover on a National Service Life Insurance contract in the amount of $10,000. Prior to the suit, the appellee made claim through the Veterans' Administration and her claim was rejected by the Administration's Board of Appeals. Mrs. Mitchell, the appellant, was interpleaded as party defendant, she being the named beneficiary in the original and only existing certificate of National Service Life Insurance. The insurance was taken out by the veteran, Hardwick, on December 3, 1942, at which time he was unmarried. The district court granted judgment in favor of the widow, and from this judgment the mother, Mrs. Mitchell, has appealed.

Lt. Hardwick and the appellee were married on October 16, 1943, the day upon which he was commissioned an officer, at Monroe, Louisiana. The testimony of the appellee is that on that day Hardwick stated to her that "he had a policy made out to his mother, but since we were married he was taking a policy out in my name." There is no evidence, insofar as the Government records show, of any affirmative act of the Lieutenant actually making a change of beneficiary from his mother to his wife while he was at Selman Field, Monroe. The day following their marriage Hardwick and his wife went to Texas to visit his mother and step-father and spent about a week there. Thereafter he was sent to various training fields, to which posts his wife accompanied him. Toward the latter part of January, 1944, Hardwick was informed that he would be sent overseas for combat duty. At that time he and his wife made a last visit to his parents in Texas, and after that visit Hardwick went to Grand Island, Nebraska, for his final processing for overseas duty, and his wife returned to her home at West Monroe. During the January visit to his parents, Mr. and Mrs. Mitchell, there was some discussion in the family about Hardwick's insurance, but the testimony is conflicting. Mrs. Hardwick was at that time pregnant, and her testimony is that Hardwick, upon finding the insurance certificate in his mother's house, said: "Mother, throw this away, because it is not worth the paper it is written on; I have made out my insurance to Juanita because she is expecting a child and needs it, and I have had it issued to her." The wife testified that Mrs. Mitchell was present, understood, and stated that she also wanted it "to be that way." The mother's story of what occurred is that a conversation took place between herself and her son concerning his life insurance, and that her son's wife was not present. She says that she intended to get the insurance certificate which was in her bureau, but that her son said: "No, you needn't bother about it, because I have got it fixed and you will get yours and she will get hers." The mother says she replied: "But you know I have this paper," and that her son replied: "That is OK, it's just a piece of paper." The mother's testimony is that this conversation was the only one that was ever held between herself and her son with regard to the insurance.

At the time of his final processing at Grand Island, Nebraska, Lt. Hardwick, on February 3, 1944, filled out a Government Insurance Report Form on which he filled in his wife's name as that of beneficiary of his insurance. The original of this document has never been located among the Government records; a copy, however, was received by the deceased officer's wife through the United States Mail from the War Department, mailed at Grand Island, Nebraska. A brother officer and close friend, Lt. Lancaster, who was with Hardwick, standing next to him in line at the time this form was filled out, testified that at that time he did not hear Hardwick state that he desired to make a change of beneficiary or request a form for the purpose; but he further testified that he and Hardwick had had several conversations, both in America and later in England, during the course of which Hardwick had said that before his marriage his mother had been the beneficiary of his life insurance, but that he had changed it so that his wife would be the beneficiary. On February 22, Hardwick wrote his wife from England and said, among other things, "Say, darling, did you ever get your papers for my insurance? You should have gotten it before now." (On the trial the court and counsel differed as to whether the word "your" was "your" or "Gov." or "Govt.")

Appellant's specifications of error are: (1) That the court erred in failing to find that the appellee had failed to maintain the burden of proving that her husband had changed the beneficiary; (2) that the lower court erred in holding that the...