Peake v. United States, Civ. No. 2231.
| Decision Date | 10 February 1955 |
| Docket Number | Civ. No. 2231. |
| Citation | 138 F. Supp. 810 |
| Parties | Leona PEAKE v. UNITED STATES of America. |
| Court | U.S. District Court — Eastern District of Tennessee |
John S. Wrinkle, Chattanooga, Tenn., for plaintiff.
John C. Crawford, U. S. Atty., Knoxville, Tenn., for defendant.
For insufficiency of the claim for relief, the defendant has filed a motion to dismiss the plaintiff's action which was instituted for recovery under a National Service Life Insurance policy.
Material parts of the complaint set out that the plaintiff's son, Oscar Charles Peake, Jr., was inducted into the military service of the United States on April 29, 1943, and served in the army until on or about July 30, 1943, when he disappeared from Camp Wheeler, Georgia; that there has been no evidence concerning his existence or whereabouts since; that during the period of his military service he acquired a policy of insurance for $10,000 under the provisions of the National Service Life Insurance Act, 38 U.S.C.A. § 801 et seq., which policy was effective May 1, 1943, in which plaintiff was named as beneficiary; that pursuant to a suit in a local equity court a judgment was entered on February 7, 1953, in which the court announced that the soldier was presumed to be legally dead and adjudged that his death occurred on or about July 30, 1943, the date of the mysterious and unexplained disappearance; that before the issuance of the policy the soldier had become totally and permanently disabled and that his ailments and injuries were, "Chorea, nervous trouble, mental trouble, St. Vitus Dance, general debility and weakness and despondency"; that the plaintiff made due application to the Veterans Administration for the benefits under the policy, but the defendant disagreed and declined to pay; and that the seven year period of her son's unexplained absence tolled the statute of limitations.
The plaintiff's right of recovery depends on whether the adjudication of the state court declaring him to be dead as of July 30, 1943, is effective under federal law. Necessarily the judgment of the state court was based upon Tennessee statutory law. Williams' Code of Tennessee, Vol. 5, pocket part, Chapter 5, particularly sections 8407.10(1) and 8407.19(2).
The Court reaches the conclusion that the judgment of the state court has no efficacy in support of plaintiff's claim.
Under the general provisions pertaining to benefits under the law administered by the Veterans Administration, there is provided a definite prohibition against any state law being applicable for presumption of death. Title 38 U.S. C.A. § 32a. The same provision is carried into the National Service Life Insurance Act itself, codified at Title 38 U.S.C.A. § 810. The language is so plain that no one can err thereby and is as follows: "No State law providing for presumption of death shall be applicable to claims for National Service Life Insurance."
The general provisions at said section 32a and...
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Peak v. United States
...insured would, under the allegations of the complaint, 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......
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