Shannon v. United States, 11585.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 206 F.2d 479,93 US App. DC 4
• Docket Number: No. 11585.,11585.
• Parties: SHANNON v. UNITED STATES.
• Decision Date: 02 July 1953

93 US App. DC 4, 206 F.2d 479 (1953)

SHANNON
v.
UNITED STATES.

No. 11585.

United States Court of Appeals District of Columbia Circuit.

Argued April 15, 1953.

Decided July 2, 1953.

206 F.2d 480

Mr. C. Brewster Chapman, Jr., Washington, D. C., for appellant. (Appointed by the Court.)

Mr. Peter C. Charuhas, Washington, D. C., with whom Mr. Charles M. Irelan, U. S. Atty., Washington, D. C., at the time of argument, was on the brief for appellee. Mr. Joseph M. Howard, Asst. U. S. Atty., Washington, D. C., at the time record was filed, also entered an appearance for appellee.

Before WILBUR K. MILLER, BAZELON and WASHINGTON, Circuit Judges.

BAZELON, Circuit Judge.

Appellant's claim as contingent beneficiary under a National Service Life Insurance policy was denied by the District Court on the ground that the policy had lapsed for non-payment of premiums and hence was not in force on the date of the insured's death.¹ On September 23, 1945, while on duty in the Philippines, insured was marked AWOL (absent without leave) from his Army unit and was still classed AWOL when found murdered, by person or persons unknown, around the middle of January 1946. Although the information necessary for determining the actual date of death was unknown, the Army fixed it, for official purposes, as January 3, 1946. "Presumably," says the appellee in its brief, "this refers to Philippine Islands time."²

The court below agreed with the appellee that under Army regulations (1) pay and allowances ceased on September 23, 1945, the date on which the insured was first marked AWOL; (2) the last allotment available for payment of insurance premiums was withheld on October 31, 1945, to meet the premium due on November 1, 1945; (3) the next premium, which was due on December 1, 1945, was not paid and

206 F.2d 481

hence the policy expired at the end of the 31-day grace period — at midnight, January 1, 1946. Appellant challenged this construction of Army regulations but says for the first time on appeal that even under this construction the policy was still in force on the day fixed by the Army as the insured's date of death. We need only consider this contention

The parties agreed in this court that since the policy was executed at Washington, D. C., that time governs its provisions. They also agreed that since January 1, 1946, was a legal holiday, the 31-day grace period did not expire until midnight, January 2, 1946 — District of Columbia time. Because of the 13-hour time differential, we may judicially notice that when it was midnight, January 2, 1946 here, it was 1:00 p. m., January 3, 1946, in the Philippines.³ The only question left for determination is whether the insured died before or after 1:00 p. m., January 3, Philippine time.

We think the burden of proceeding with the evidence on this question rests with appellee. Although it may be difficult to establish the hour of death, it is plain from the circumstances that such information is most peculiarly within appellee's knowledge.⁴ To require appellant to establish the fact would place an impossible burden upon him and do violence to the principle that in war risk insurance cases "all reasonable presumptions must be indulged in favor of the insured."⁵ Since this issue was raised initially on appeal, the case should be remanded with directions to afford the appellee an opportunity to establish the hour of death. If it fails to establish that the...