United States v. Conklin
| Decision Date | 18 June 1928 |
| Docket Number | No. 5412.,5412. |
| Citation | 27 F.2d 45 |
| Parties | UNITED STATES et al. v. CONKLIN. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., and Lawrence A. Lawlor, U. S. Veterans' Bureau, of Washington, D. C. , for the United States.
Kenneth C. Gillis and Gillis & Edwards, both of Oakland, Cal., for appellant Deavenport.
Alvin Gerlack, of San Francisco, Cal., for appellee.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
George Heizman enlisted in the United States Army May 5, 1918, and on the following day applied for war risk insurance in the sum of $10,000. July 16, 1918, his wife, Sadie Mae Heizman, was designated as beneficiary under the policy. The premium due November 1, 1919, was not paid, and the policy lapsed one month later. October 7, 1920, the Heizmans were divorced by decree of the district court of Montgomery county, Kansas, at the suit of the wife, and on November 2, 1920, George Heizman died. The government states in its brief that the insurance lapsed and was not in force at the time of the death of the insured, nor until restored under section 27 of the Act of August 9, 1921, 42 Stat. 156, which contains the following proviso:
"That where any soldier has heretofore allowed his insurance to lapse, while suffering from wounds or diseases suffered or contracted in line of service, and was at the time he allowed his said policy to lapse entitled to compensation on account thereof in a sum equal to or in excess of the amount due from him in premiums on his said insurance, and has since died from said wounds or diseases without collecting or making claim for said compensation, or being allowed to reinstate his said policy on account of his physical condition, then and in that event said policy shall not be considered as lapsed, and the Veterans' Bureau is hereby authorized and directed to pay to the beneficiaries of said soldier under said policy the amount of said insurance less the premiums and interest thereon at 5 per centum per annum compounded annually in installments as provided by law." Comp. St. § 514vv(9).
Counsel for the plaintiff below insists that this statement on the part of the government is not supported by the record, and this is in a large measure true; but the complaint averred that the insurance lapsed on the 1st day of December, 1919, for failure to pay the premium due November 1, 1919, and that the policy was reinstated October 13, 1920, and the answer admitted that the policy lapsed as alleged in the complaint, but denied the reinstatement. No competent proof was offered in support of the allegation that the policy was reinstated, so that, if the policy was in force at all, it was only by virtue of the admissions contained in the answer and in the brief filed by the government.
The Attorney General, on June 21, 1920, ruled that relationship by marriage is terminated by death or divorce, if there is no issue surviving. 32 Opinions of Atty. Gen. p. 254. Because of this opinion there was inserted in the amendment of August 9, 1921, supra, subsection 402 (a), providing:
"Where a beneficiary at the time of designation by the insured is within the permitted class of beneficiaries and is the designated beneficiary at the time of the maturity of the insurance because of the death of the insured, such beneficiary shall be deemed to be within the permitted class even though the status of such beneficiary shall have been changed." Comp. St. § 514uuu(a).
Relying on this provision, the Veterans' Bureau paid the insurance as the installments became due to the former wife of the deceased soldier. The present suit was instituted by a sister of the deceased, claiming that she, and not the divorced wife, was the rightful beneficiary under the policy. From a decree in favor of the sister, the United States and the divorced wife have appealed.
The policy, or certificate of insurance, does not appear in the record; but it is conceded that it contained the usual provision that the contract of insurance was made up of and subject in all respects to the provisions of the Act of October 6, 1917, and all amendments thereto (Comp. St. § 514 et seq.) and all regulations then in force or thereafter to be adopted. The appellee likewise concedes that Congress had power to remove the disability incurred by the wife, through obtaining the divorce, if it saw fit to do so; but it is earnestly insisted that the amendment removing the disability has no application to the present case, because the insured died before the enactment of the amendment, and the amendment was not in terms made...
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Murray v. United States
...husband's insurance even after her divorce if she was named as the beneficiary originally and the beneficiary never changed. Conklin v. U. S., 9 Cir., 27 F.2d 45; U. S. v. Smith, 9 Cir., 55 F.2d 141, 81 A.L.R. 926; Tannehill v. U. S., D.C., 82 F.Supp. 362. It has also been held that a stepd......