Schiefer v. United States

• Decision Date: 03 August 1931
• Docket Number: No. 3976.,3976.
• Citation: 52 F.2d 527
• Parties: SCHIEFER v. UNITED STATES et al.
• Court: U.S. District Court — Western District of New York

52 F.2d 527 (1931)

SCHIEFER v. UNITED STATES et al.

No. 3976.

District Court, W. D. New York.

August 3, 1931.

Saperston, McNaughtan & Saperston, of Buffalo, N. Y., for plaintiff.

Richard H. Templeton, U. S. Atty., and Justin Morgan, Asst. U. S. Atty., both of Buffalo, N. Y. (A. S. Thomson, Regional Atty., Veterans' Administration, of Buffalo, N. Y., of counsel), for the United States.

THOMAS, District Judge.

This case has been submitted for decision upon the pleadings, the stipulation, and the briefs.

Amelia M. Sweet Schiefer individually and as administratrix of the estate of Leonard S. Sweet, deceased, brings this suit against the United States and Mae Amelia Sweet, her daughter, and one Hattie Frances Sweet. No relief of any kind is demanded by the plaintiff against any defendant other than the United States, and nothing is demanded against the United States other than a judgment for a sum of money. Judged then by the usual criteria, the suit must be one at law. No rights of any kind can be determined here except the plaintiff's alleged right to recover a sum of money against the United States.

The complaint, which, for some reason or other not disclosed, is called the "petition," alleges that the plaintiff married Leonard S. Sweet in Buffalo on October 7, 1910; that the marriage was never dissolved but continued in full force and effect until his death; that he enlisted in the armed forces of the United States on April 26, 1918; that on May 1, 1918, he applied for and was granted insurance in the sum of $10,000; that he was killed in action and died intestate on October 31, 1918; and that he paid the insurance premiums up to the time of his death.

From the stipulation entered into by the parties it further appears that Sweet, the soldier, in his application for insurance designated as his wife Hattie Frances Sweet of Cleveland, Ohio, beneficiary. Following the soldier's death she, as the named beneficiary, was notified and applied for the insurance money as the named beneficiary and accompanied her application with the affidavits of identifying witnesses and the certificate of the clergyman showing the marriage of Leonard S. Sweet and Hattie Frances Lemparcyk of Cleveland, Ohio, on April 25, 1918.

It is further stipulated that payments by the United States Veterans' Bureau were made to Hattie Frances Sweet only because of the statement in the soldier's application for insurance that she was his wife and beneficiary. The above-mentioned proofs, it is stipulated, substantiated the right to pay Hattie Frances Sweet until the claim of this plaintiff came to the attention of the Veterans' Bureau on February 3, 1928, nearly ten years after the insurance was written.

It is also stipulated that the plaintiff and the deceased soldier, who were married in October, 1910, separated during 1912 and the plaintiff did not thereafter know the whereabouts of her husband until informed by her father-in-law, Ralph Sweet, during the spring of 1927 that the soldier had been killed in service on October 31, 1918. From the stipulation it further appears that the plaintiff, on October 11, 1921, married one Jacob Schiefer and told him that she had been previously married; that at the time of her marriage to Schiefer it now appears that she, in truth and in fact, did not know whether Leonard S. Sweet was dead or alive and had no definite knowledge of that fact until informed as above stated.

It is also asserted in the stipulation that the amount which has been paid to this plaintiff by the United States Veterans' Bureau on account of said war-risk insurance is $1,266, and that $5,980 has been paid to said Hattie Frances Sweet; that the United States Veterans' Bureau has also paid Hattie Frances Sweet $2,754 on account of death compensation as the widow of the deceased soldier. It is further stipulated that the United States does not contest the right of the plaintiff to recover herein said amount of $2,754.

The precise theory of the plaintiff's claim is nowhere formulated. Paragraphs 18 and 19 of the complaint allege that Sweet, at the time of his death, was a resident of Ohio, and that under the laws of Ohio the plaintiff would be entitled to the sum of $400, sufficient for the support of herself and child for one year, and one-third of the residue; and that Mae Amelia Sweet would be entitled to the balance of the residue upon administration of the estate. Nevertheless, the plaintiff, suing individually as well as in her capacity as administratrix, demands judgment for $8,734, which is the difference between $10,000 (the face of the policy) and $1,266 (the amount already paid to her).

As, however, the case was submitted on the pleadings and stipulation of the facts, and as paragraphs 18 and 19 of the complaint are denied in defendant's answer, and as the stipulation is silent as to the matters alleged in those two paragraphs, I am constrained to the conclusion that the law of Ohio has...