Moths v. United States, 9927.
| Decision Date | 02 February 1950 |
| Docket Number | No. 9927.,9927. |
| Citation | 179 F.2d 824 |
| Parties | MOTHS v. UNITED STATES et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Drought & Grootemaat, Milwaukee, Wisconsin, Ralph J. Drought, Oliver A. Grootemaat, Milwaukee, Wisconsin, S. J. Crumpacker, South Bend, Indiana, attorneys for defendant-appellant.
L. M. Hammerschmidt, South Bend, Indiana, James E. Keating, Asst. U. S. Attorney, South Bend, Indiana, Milton A. Johnson, South Bend, Indiana, Bruce C. Hammerschmidt, South Bend, Indiana, of counsel, attorneys for appellee.
Before KERNER, LINDLEY, and SWAIM, Circuit Judges.
Plaintiff, Dorothy J. Moths, sued to recover on her husband's National Service Life Insurance policy. Defendant, Ray John Moths, father of Russell J. Moths, the soldier to whom the policy was issued, answered, claiming to be the principal beneficiary under the policy. The United States admitted that it owed someone the amount of the policy, and asked the court to determine which of the two claimants was entitled to the proceeds. The question was whether the soldier ever effected a change of beneficiary from his father to his wife, now his widow. The case was tried without a jury. The trial judge made findings of fact and conclusions of law. He held that plaintiff was entitled to the proceeds of the policy and entered judgment to that effect. This judgment, defendant seeks to reverse.
The crucial question is whether the soldier had formed an intention to change the beneficiary of his insurance policy and had taken any affirmative step to carry out that intention. On that issue defendant contends that the record is barren of any valid proof.
Russell J. Moths entered the military service in January, 1942, as an aviation cadet, and was later commissioned a Second Lieutenant in the Air Force. On February 6, 1943, a certificate of National Service Life Insurance was issued to him in which his father was named as principal beneficiary and his mother as contingent beneficiary. After the certificate was issued, it remained in the father's possession. Moths married plaintiff on December 21, 1943.
While Moths was stationed at a camp near Dodge City, Kansas, Staff Sergeant Pokres, an attorney, had charge of the legal assistance work at the camp, and lectured on the subject of the officers' legal rights. Moths attended the lecture, was given a legal assistance form and instructed to fill it out in his own handwriting. After Moths had answered the questions propounded in such form, he gave it to Pokres who turned it over to a clerk in his office who typed the information on a "Legal Assistance Record" dated November 18, 1943. It disclosed that an insurance policy had been issued to Moths and that his parents had been named therein as beneficiaries. On December 13, 1943, another "Legal Assistance Record" was prepared and signed by Moths. It contained a notation that Dorothy, his wife, was designated as beneficiary of his Government insurance, and that his father was the beneficiary in a $10,000 policy issued by the Guardian Life Insurance Company and also the beneficiary in a $1,000 policy issued by the New York Life Insurance Company. On December 17, 1943, after Pokres checked every item in this "Legal Assistance Record," Pokres asked Moths whether it was correct that his wife was the beneficiary of his National Service Life Insurance, and he answered "yes." On December 17, 1943, Moths executed a will witnessed by Pokres and two other men. In the will Moths bequeathed all his property to his wife. In May, 1944, Moths was sent to England.
On May 18, 1944, plaintiff suffered a miscarriage and wrote to her husband about it a few days later. The letter, however, never reached her husband, and was returned undelivered by the postal authorities following his death. On June 8, 1944, while the soldier was in England, he wrote a letter to his wife in which, after describing what he had seen in England and relating his experiences with the people he had seen and met, he said:
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