Prudential Ins. Co. of America v. Willis

• Decision Date: 30 November 1970
• Docket Number: No. 45731,No. 3,45731,3
• Citation: 123 Ga.App. 150,179 S.E.2d 688
• Parties: PRUDENTIAL INSURANCE COMPANY OF AMERICA v. Lorenzo WILLIS, by Next Friend
• Court: Georgia Court of Appeals

Page 688

179 S.E.2d 688

123 Ga.App. 150

PRUDENTIAL INSURANCE COMPANY OF AMERICA v. Lorenzo WILLIS, by Next Friend.

No. 45731.

Court of Appeals of Georgia, Division No. 3.

Nov. 30, 1970.

Rehearing Denied Dec. 18, 1970.

Certiorari Granted Jan. 298 1971.

Syllabus by the Court

1. Since the Federal law and decisions of the Supreme Court of the United States are controlling in determination of the meaning of 'child or children' in the beneficiary clause of the Servicemen's Group Life Insurance Act (79 Statute 883, 38 U.S.C.A. § 770), this phrase includes an illegitimate child of the deceased serviceman here.

2. As all the evidence shows the plaintiff in this case to be the illegitimate child of the deceased serviceman, the lower court did not err in granting summary judgment in favor of the plaintiff and denying the motion for summary judgment of the defendant insurance company.

Lorenzo Willis, a minor, by next friend, Willie Wilbon, as plaintiff, the appellee herein, filed his complaint against The Prudential Insurance Company of America, as defendant, now the appellant, seeking to recover the sum of $10,000 as proceeds of Prudential's Group Policy G-32,000 issued by Prudential through the Servicemen's Group Life Insurance program, authorized by Federal law (38 U.S.C.A. § 701 et seq.). Willis alleges he is the illegitimate child of Johnny Cleveland Simpson, deceased, a serviceman killed in Vietnam. Based upon the pleadings, admissions, depositions, and other evidence in the record, Willis filed a motion for summary judgment, and Prudential filed a cross motion for the same. After a hearing, the court granted summary judgment in favor of Willis and denied summary judgment as to Prudential. The appeal is from this final judgment, and also from the denial of summary judgment in favor of Prudential, with a certificate of appealability thereof signed by the trial judge.

The Federal law referred to above provides for insurance for members of the armed forces while on active duty. The putative father of the plaintiff died while on active duty, serving with the United States Army. He was not married, and was survived by a father. The deceased made no designation as to specific beneficiaries, but requested payment be made under the beneficiary provisions of the Servicemen's Group Life Insurance Act which provided that the benefits under the policy shall be paid in the order of precedence as follows: 1. Widow or widower; 2. Child or children; and 3. Parents of such member or the survivor of them, and then to the duly appointed executor or administrator, and if none, to other next of kin under the laws of domicile of such member. The mother of the illegitimate made application for the proceeds but was advised to produce other evidence. She failed to do so and upon demand of the insured's father, Prudential paid the proceeds to him.

Janie Willis, the mother of the child, testified by deposition without contradiction that she was 17 years of age; that she started dating deceased when she was 12 or 13 years of age and never dated any other person or had sex relations with any other person other than the deceased; that the deceased gave her an engagement ring; that she had intercourse with deceased many times; that when she told deceased that she was pregnant, he asked whether she wished to get married; that deceased arranged for the doctor and lying-in costs, and paid the bills; that she didn't name the baby after deceased because she understood that she couldn't do this unless they were married; that deceased's sister named the child; that deceased's father signed for the hospital bill; that deceased was the father of the child; that upon returning home on leave from the Army, deceased came by and carried the baby home with him; the deceased acknowledge the baby as his own and agreed to keep it up; that deceased wrote and asked her about the baby but she had lost the letters. A statement signed by deceased agreeing to pay the doctor's bill for the baby was identified and placed in evidence. The mother of the child is receiving Social Security and Veterans Administration benefits for the child as a child of the deceased veteran.

Cleveland Simpson, father of deceased, testified that deceased told him that the child was his (deceased's) and that the witness had paid the hospital bill; that his daughter (sister of deceased) brought the baby home with her several times and the deceased acted like he was the father.

Based upon the above, Willis contends that there is no disputed issue of fact that he is the child of the deceased. However, Prudential contends that the evidence is conflicting on whether he is or is not, but further contends that even so, the Georgia law is controlling as to the meaning of the term 'child or children' under the Servicemen's Group Life Insurance Act, and since an illegitimate child does not possess the legal status of a 'child' under Georgia law, Willis is not a recognized beneficiary under the insurance policy. Prudential thus contends the trial court erred as a matter of law in denying its cross motion for summary judgment and in granting Willis' motion for summary judgment.

King & Spalding, A. Felton Jenkins, Jr., Joseph B. Haynes, Atlanta, Lavender & Cunningham, Woodrow W. Lavender, Fred Cunningham, Elberton, for appellant.

Heard & Leverett, E. Freeman Leverett, Elberton, for appellee.

EVANS, Judge.

1. Counsel for the defendant contends that the Georgia law is controlling as to the meaning of the term 'child or children' in the beneficiary clause of the Servicemen's Group Life Insurance Act (79 Statute 883, 38 U.S.C.A. § 770). Indeed, the ruling in Cooper v. Melvin, 223 Ga. 239, 154 S.E.2d 373, supports the contention as to the meaning of the term 'child or children,' for in that case the Supreme Court held that the term would not cover illegitimate children. That is as follows: 'The word 'children' in the printed form of the group insurance policy under consideration in the present case, insuring the putative father of illegitimate children, can not be construed to mean illegitimate children who have not been legitimated by their father.' While that case involved a group insurance policy covering United States Civil Service employees pursuant to the Federal Employees Group Insurance Act of 1954, which appears to be a Federal law similar to that involved in this case, yet no discussion was made in that case as to the meaning of the Federal statutes. Hence, we must look to the purpose of the Federal statute here and determine whether the Congress intended the same to be interpreted by Federal law or by the law of the domicile of the various servicemen involved. We do not believe that the Congress intended that the various 50-odd State jurisdictions would interpret this law so as to have different results in different States. Undeniably, the Melvin case, supra applied the Georgia law, and if the Georgia law controls, we need go no further than to reverse the trial court in granting the summary judgment for the plaintiff and denying it as to the defendant.

However, we have here numerous Federal decisions involving the National Service Life Insurance Act and the War Risk Insurance Act of World War I, the predecessors of the present law under consideration. In Davenport v. Servicemen's Group Life Insurance, 119 Ga.App. 685 at page 689, 168 S.E.2d 621 at page 624, this court stated: 'War risk insurance was made available to those in active military service for the greater protection of themselves and their dependents.' And at page 691, 168 S.E.2d at page 625: 'Just as the courts, in deciding change of beneficiary questions under the National Service Life Insurance Act, looked to decisions under the War Risk Insurance Act of World War I, the principles laid down in the decisions dealing with the former Act are pertinent and applicable to cases arising under the Servicemen's Group Life Insurance Act because of the substantial identity of the two Acts in regard to the requirements for change of beneficiary.' Therefore, Federal cases dealing with these two types of insurance should be considered by Life Insurance Act required free enterprise While it is true the Servicemen's Group Lif eInsurance Act required free enterprise activity of various insurance companies throughout the 50 States, nevertheless, these insurance...