Prose v. Davis, 9839.
| Decision Date | 18 November 1949 |
| Docket Number | No. 9839.,9839. |
| Parties | PROSE v. DAVIS et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert J. McPeak, Terre Haute, Ind., Ernest M. Causey, Terre Haute, Ind., Aikman, Piety & McPeak, Terre Haute, Ind., Miller, Causey & Aldridge, Terre Haute, Ind., for appellant.
Thomas P. Gallagher, Howard T. Batman, David I. Day, Jr., Terre Haute, Ind., B. Howard Caughran, U. S. Atty., Indianapolis, Ind., for appellees.
Before KERNER, DUFFY and FINNEGAN, Circuit Judges.
This appeal presents a somewhat different aspect of the problem of the determination of the beneficiary of a policy of National Service Life Insurance. The controversy is between a sister of the insured, who contends that he designated her as the beneficiary of his policy after the death of their father whom he had originally designated, and their stepmother who relies upon her status in loco parentis to recover by operation of law. We shall refer to them as plaintiff and defendant.
Many of the facts were stipulated, and additional evidence was introduced on the hearing. The following facts were introduced by stipulation. The insured was a brother of plaintiff and the stepson of defendant who married his father in 1928 when he was thirteen years of age. He entered military service on September 4, 1942, and obtained two policies of National Service Life Insurance. The first named his father as beneficiary with no contingent beneficiary designated, and the second named his father, with his sister as contingent beneficiary Both policies were in effect at the time of his death in December, 1944. The suit here involves only the first policy. The records of the War Department and of the Veterans' Administration show no change of beneficiary with respect to it. Between April 6, 1944, and July 11, 1944, the insured wrote a series of letters to plaintiff, all of which were to be received in evidence without objection. The insured made a Class E allotment of $25 a month to plaintiff beginning in May, 1944. Plaintiff received a series of notices from the War Department, three of them telling of slight wounds suffered by him, a fourth, that he was missing in action, and a fifth, that he had been killed; after his death plaintiff received three shipments of his personal effects from the War Department and also a Purple Heart Medal posthumously awarded to the insured. The insured named her as his beneficiary to receive his death gratuity.
Both plaintiff and defendant filed claim for the insurance before the Veterans' Administration; it denied plaintiff's claim and awarded the insurance to defendant. The parties further stipulated that defendant stood in loco parentis to decedent for more than one year during his minority and prior to his induction into the Army.
In addition to the stipulated facts plaintiff introduced evidence that the insured was called home on emergency furlough in March, 1944 because of the illness of defendant. While he was at home his father died March 26. He remained at home until after the funeral and during that period he expressed regret that he had not designated plaintiff as the contingent beneficiary of both his policies and stated his intention of making a change as soon as he returned to camp, designating her to receive all his insurance.
Two members of the division in which the insured served were witnesses for plaintiff. One, the sergeant of his squad, testified that shortly after his return to duty following his father's funeral, the insured asked his advice as to how to change the beneficiary of his insurance and obtained permission to go to Personnel Head-quarters for that purpose. Because of the rush there on that day he obtained permission to go again the following day, and upon his return, in response to the sergeant's question, he told him he had straightened out his insurance beneficiary and that he had designated his sister "as beneficiary of his National Service Life Insurance." The sergeant stated that he had questioned all the men in his squad about their insurance and other matters in order to make sure that their affairs were in order — this was a part of his duty as the outfit was preparing for overseas movement.
Lieutenant Hinckley, the leader of the platoon to which the insured was attached, likewise testified that he had given him permission on two successive days to go to Personnel to change his beneficiary and, upon his return, the insured had told him that "he had his insurance completed, signed all the forms, and that as far as he knew everything was in order," and that he had changed it to his sister. The lieutenant testified further that he had filled out a personal record card for each member of his platoon, and he used this card to refresh his memory at the hearing. According to it, the insured stated that he had $10,000 insurance and that his sister, Gretchen A. Prose, was the designated beneficiary of the entire amount.
Photostatic copies of the military record of the insured were introduced in evidence. His induction report designated as his beneficiary, in case he died without leaving a widow or child, his father, and, in case of his father's death or disqualification, then his sister. An insert to his service record shows that AGO Form No. 41 was forwarded April 11, 1944, designating his sister as his beneficiary and also naming her as his nearest relative and the person to be notified in emergency. Below the name and address of the beneficiary was the comment, "Soldier declines to designate alternate beneficiary to receive this pay." The Adjutant's certificate of the record includes a note that no record had been found of AGO Form No. 41 referred to in the insert.
Plaintiff also introduced the nine letters referred to in the stipulation. The first was written the day after his return to duty following their father's funeral. In this he referred to the fact that he had told her that he would have to have his papers changed and would have his father's name taken off and hers put on. Three days later he wrote that he was having it done — "they will be all in your name." On April 11, the date of the service record insert, he wrote that he had all his papers fixed up and they were all made to her. April 12, he referred to his papers — "they said you would get a new one that they was no good but you know where they are if you do need them...
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...1772; Hart v. United States, supra; Kendig v. Kendig, supra; Mitchell v. United States, 5 Cir., 165 F.2d 758, 2 A. L.R.2d 484; Prose v. Davis, 7 Cir., 177 F.2d 478; Roberts v. United States, 4 Downing v. Downing, 9 Cir., 175 F.2d 40; Prose v. Davis, supra; Foster v. Winingham, supra; Collin......
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