United States v. Sinor

• Decision Date: 12 December 1956
• Docket Number: No. 16025.,16025.
• Citation: 238 F.2d 271
• Parties: UNITED STATES of America, Appellant, v. William H. SINOR, Administrator of the Estate of Clyde Sinor, Deceased, and William H. Sinor, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

238 F.2d 271 (1956)

UNITED STATES of America, Appellant, v. William H. SINOR, Administrator of the Estate of Clyde Sinor, Deceased, and William H. Sinor, Appellees.

No. 16025.

United States Court of Appeals Fifth Circuit.

November 14, 1956.

Rehearing Denied December 12, 1956.

B. Jenkins Middleton, Atty., Dept. of Justice, Washington, D. C., E. Coleman Madsen, Asst. U. S. Atty., Jacksonville, Fla., Melvin Richter, Lionel Kestenbaum, Attys., Dept. of Justice, Washington, D. C., George Cochran Doub, Asst. Atty. Gen., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellant.

Lester Summersill, John E. Teate, Jacksonville, Fla., for appellees.

Before RIVES, TUTTLE and JONES, Circuit Judges.

JONES, Circuit Judge.

The facts which present the problems of this appeal are, for the most part, stipulated. Clyde Sinor had eight years of grammar school and a half year of high school. He worked eight years as a truck driver before entering the armed forces. He became a member of the Air Force on July 9, 1942. On August 1, 1942, he was issued $8,000 of National Service Life Insurance, of which $4,000 was payable on his death to his father, William H. Sinor, and a like amount was payable to his mother, Effie Cantrell Sinor. On June 1, 1943, he was issued an additional $2,000 of such insurance, payable half to his father and half to his mother. His mother died on July 7, 1944. No conventional substitution of an insurance beneficiary was made by the insured. He re-enlisted on November 16, 1945, and as an incident to his re-enlistment he executed a form styled "Designation of Beneficiary" in which his father, William H. Sinor, was named as beneficiary and his brother, Carl Sinor, was designated as strike contingent beneficiary.

While in the service, Clyde Sinor contracted myelogenous leukemia and with it he was afflicted during the remainder of his life. He was discharged from the service at Brooke General Hospital, Fort Sam Houston, Texas, on July 22, 1949. At the time of and at all times after his discharge, Clyde Sinor was rated, for the purpose of a compensation award, as 100% disabled physically. Upon being discharged Clyde Sinor went by train from Fort Sam Houston to Jacksonville, Florida, where he was met at the train by his brother, Carl Sinor, whose assistance he needed in going from the railway station to the brother's home. He stayed with his brother for about three months and then moved to Brunswick, Georgia, where he resided at the home of his nephew, J. C. Sauter, and there he lived periodically for the rest of his life. The nephew's wife was a trained nurse and she assisted in Clyde Sinor's care while he was in the home of his nephew. During this period Clyde Sinor drove his car about alone on his personal business. He made frequent trips to Jacksonville to see his father and his brother, and made frequent visits to Veterans' Hospitals for treatments and periodic check-ups. From the time of his discharge to the time of his death, Clyde Sinor was unable to perform manual labor, he tired quickly and suffered from shortness of breath when he would exert himself. Yet he owned an automobile and was able to drive about alone on personal business. On September 1, 1949, Clyde Sinor was notified that his Government insurance had lapsed for nonpayment of premiums. He did not at any time make application for a waiver of premiums during total disability as he might have done under Section 602(n) of the National Service Life Insurance Act, as amended, 38 U.S.C.A. § 802(n). On September 1, 1953, Clyde Sinor entered the Veterans' Hospital at Nashville, Tennessee, and there he died of myelogenous leukemia on October 13, 1953.

William H. Sinor made claim for the amount of the insurance. The Veterans Administration disallowed the claim for the assigned reason that the policies had lapsed. William H. Sinor and Carl Sinor employed counsel and brought suit on the policies. Carl Sinor was dropped as a party. William H. Sinor, as Administrator of the Estate of Effie Cantrell Sinor, deceased, was made a party plaintiff but later was succeeded by William H. Sinor, as Administrator of the Estate of Clyde Sinor, deceased. The plaintiffs' complaint asserted that the determination by the Veterans Administration of the insured's disability was, in effect, a waiver of premiums, that Clyde Sinor was not physically or mentally able to make application for a waiver of premiums because of his condition and so had been prevented from applying for a waiver by circumstances beyond his control. In addition to the facts herein related it was stipulated that neighbors would testify the deceased was able to get around, and appeared normal and rational in his actions.

The District Court regarded the compensation rating of 100% disability as total disability within the meaning of the National Life Insurance Act, supra, so as to entitle the insured veteran to a waiver of premiums. So also the district court concluded the averment of the United States that the insured "was not prevented from filing timely application for waiver of premiums due to conditions beyond his control" was unsupported by proof. The district court held that the regulations, 38 C.F.R., § 8.40, gave to the beneficiary the right to apply for a premium waiver within a year from the insured's death provided such disability commenced (a) subsequent to the application for insurance, (b) while the insurance was in force under premium-paying conditions, and (c) prior to the insured's sixtieth birthday. These conditions, the district court said, were met when William H. Sinor filed his claim for benefits after the death of the insured.

Judgment was entered for the plaintiffs. The United States has appealed and three questions are submitted by it for our consideration. These questions are:

1. Can the beneficiary of National Service Life Insurance obtain a retroactive waiver of premiums for disability of the insured whose right to such waiver has been lost by failure to make timely application?

2. Where it is contended that an insured failed by reason of circumstances beyond his control to apply before lapse for a premium waiver by reason of disability, must the beneficiary prove the existence of such circumstances or does the Government have the burden of showing the contrary?

3. Should the Court have entered judgment for the Government because (a) the facts precluded any possibility that the insured was prevented from applying for waiver of premiums by circumstances beyond his control, or (b) the beneficiary had and failed to sustain the burden of showing that such circumstances existed?

The pertinent provisions of the National Service Life Insurance Act, 38 U.S.C.A. §§ 801-818, are as follows:

"Upon application by the insured and under such regulations as the Administrator may promulgate, payment of premiums on such insurance may be waived during the continuous total disability of the insured, which continues or has continued for six or more consecutive months, if such disability commenced (1) subsequent to the date of his application for insurance, (2) while the insurance was in force under premium-paying conditions, and (3) prior to the insured\'s sixtieth birthday: * * * Provided further, That in any case in which the Administrator finds that the insured\'s failure to make timely application for waiver of premiums or his failure to submit satisfactory evidence of the existence or continuance of total disability was due to circumstances beyond his control, the Administrator may grant waiver or continuance of waiver of premiums: And provided further, That in the event of death of the insured without filing application for waiver, the beneficiary, within one year after the death of the insured or August 1, 1946, whichever be the later, or, if the beneficiary be insane or a minor, within one year after removal of such legal disability, may file application for waiver with evidence of the insured\'s right to waiver under this section. * * *" 38 U.S. C.A. § 802(n).

The portion of the regulation upon which the district court placed reliance reads:

"That in the event of death of the insured without filing application for waiver, such application may be filed by the beneficiary with evidence of the insured\'s right to waiver under the conditions of this section on or before August 1, 1947, or within 1 year after death of the insured, whichever is the latter; * * *" 38 C.F.R. § 8.40.

The insurance policies, by their terms and the provisions of the Act, lapsed on September 1, 1949, and of this the insured had notice. More than four years expired before his death. The insurance was not in force at the time of his death unless the beneficiary had and exercised a right to apply for a retroactive waiver of premiums based upon total disability, or unless the insured's failure to make timely application for waiver of premiums was due to circumstances beyond his control. We need not decide whether the filing of a claim upon the policies can be regarded as an application by the beneficiary for waiver of premiums. At the time of his death the insured did not have any right to apply for or procure a waiver. It is for "the insured's right to waiver" which the beneficiary may apply. Where, as here, the right of the insured has expired because he failed to apply for a waiver within the time specified, the right of the beneficiary expired also, unless the insured's failure was due to circumstances beyond the insured's control. It is held that:

"While the purpose of the 1946 Insurance Act was to liberalize the former Act, it was not intended to give the beneficiary greater rights than the insured had with respect to the waiver of premiums. The intention was merely to give the beneficiary more time within which to assert the rights which the insured had. Under the statute, the right of waiver is not self-executing upon the occurrence of disability, but operates only after application therefor

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