Peak v. United States
| Decision Date | 14 February 1956 |
| Docket Number | No. 12511.,12511. |
| Citation | 229 F.2d 503 |
| Parties | Leona PEAK, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John S. Wrinkle, Chattanooga, Tenn. (C. G. Milligan, Chattanooga, Tenn., on the brief), for appellant.
Alan S. Rosenthal, Dept. of Justice, Washington, D. C. (Warren E. Burger, Paul A. Sweeney, Washington, D. C., John C. Crawford, Jr., Knoxville, Tenn., on the brief), for appellee.
Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
The appellant was the beneficiary in a National Service Life Insurance policy issued to her soldier son. Her suit to recover on the policy was dismissed on the ground that the Court had no jurisdiction of the subject matter and that her complaint failed to state a claim upon which relief could be granted. The basic facts are not in dispute.
Oscar Charles Peak, Jr., the son, was inducted during World War II into the military service of the United States on April 29, 1943. On July 30th of that year, after his unit was ordered to proceed from Camp Wheeler, Georgia to San Francisco, he disappeared and all efforts made by the Army, the FBI, and his family to locate him proved futile. On February 7, 1953, the Chancery Court of Hamilton County, Tennessee, in a suit upon a commercial policy, decreed that not having been heard from for more than seven years he died on or about the date of his disappearance, July 30, 1943. The appellant made due application to the Veterans' Administration, in 1951, for the benefits accruing to her under the policy. Her claim was denied and she brought suit against the Government on the policy in February, 1954, based upon the presumption that more than seven years having expired since the insured was last heard from, he was now dead and that the death occured as of the date of his disappearance, July 30, 1943. It is conceded that the insured did not make timely application for waiver of premium due to circumstances beyond his control, and that no one made such application on his behalf. The District Court held that his policy had lapsed.
The appellant alleges that during the life of the policy, and before the soldier's disappearance, her son was afflicted with chorea, nervous trouble, mental trouble, St. Vitus Dance, general disability, and weakness and despondency; that from his condition at that time a presumption arose that he died on or about July 30, 1943. She, therefore, contends that she became...
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Peak v. United States
...be presumed to be dead as of 1950, and that the policy had lapsed in the interim. 138 F.Supp. 810. The Court of Appeals affirmed. 229 F.2d 503. It held that the complaint contained no allegations which would entitle the trier of fact to conclude that the insured had died at a time when the ......
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Martinson v. United States
...discretionary power in the "Administrator." If the fact questions of "the insured's frail health and disability" were relevant in the Peak case, infra, surely his good health, promise of life, enjoyment of his chosen vocation in the United States Navy, absence of obvious problems or difficu......