Zazove v. United States

• Decision Date: 27 June 1946
• Docket Number: No. 9026.,9026.
• Citation: 156 F.2d 24
• Parties: ZAZOVE v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Seventh Circuit

156 F.2d 24 (1946)

ZAZOVE v. UNITED STATES et al.

No. 9026.

Circuit Court of Appeals, Seventh Circuit.

June 27, 1946.

John B. King and Edward H. S. Martin, both of Chicago, Ill., for appellant.

J. Albert Woll, U. S. Atty., and Wm. M. Lytle, both of Chicago, Ill., John F. Sonnett, Asst. Atty. Gen., Thomas E. Walsh, Department of Justice, of Washington, D. C., and Frank J. Jacobson, of Chicago, Ill., for appellees.

Before SPARKS, KERNER, and MINTON, Circuit Judges.

MINTON, Circuit Judge.

The record of this case consists of a stipulation of the following facts. Adolph B. Schwartz entered the armed forces of the United States in 1941. He died in service in 1943. At the time of his death, he had a policy of insurance in the amount of $5,000 with his three sisters named as beneficiaries, and another policy for $5,000 with the plaintiff named as beneficiary. He designated her as his aunt in his application for insurance. She was not his aunt. Both policies were issued by the United States in 1941 pursuant to the provisions of the National Service Life Insurance Act.¹

The policy in which the sisters were made beneficiaries was paid to them. The Government, however, denied the right of the plaintiff to receive payments under the policy in which she was named beneficiary, and the plaintiff brought this suit. The sisters of the deceased soldier were made third party defendants in the suit brought by the plaintiff, and as next of kin they claim the proceeds of the policy in which the plaintiff was designated as beneficiary. The Government and the third party defendants have taken the position that the plaintiff was not one of the persons who could be made beneficiary as provided by the statute. On the other hand, the plaintiff contended she stood in loco parentis to the deceased soldier for more than a year prior to his entry into the service, and she therefore was one of the persons authorized by statute to be named as beneficiary.

The soldier was twenty-five years old when in 1937 he went to live with the plaintiff, who was at that time forty-eight years of age. He continued to live in the plaintiff's home as one of her family until he entered the service on February 3, 1941. The defendants contend that the plaintiff did not stand in loco parentis to the soldier because he was twenty-five years old when he went to live in the plaintiff's household, and the relation could not arise unless he were a minor at the time he went to make his home in the plaintiff's household. The District Court took this view of the case, and entered judgment in favor of the third party defendants. From this judgment the plaintiff appealed. The sole question presented on this appeal is whether the plaintiff stood in loco parentis to the soldier.

At the time the policy was issued in this case, the statute provided: "The insurance shall be payable only to a * * * parent (including person in loco parentis if designated as beneficiary by the insured) * * *. The insured shall have the right to designate the beneficiary or beneficiaries of the insurance, but only within the classes herein provided * * *."²

This statute was amended on July 11, 1942³ by deleting the words in parentheses, "including person in loco parentis if designated beneficiary by the insured," and inserting the following provision: "The terms `parent,' `father,' and `mother' include a father, mother, father through adoption, mother through adoption, and persons who have stood in loco parentis to a member of the military or naval forces at any time prior to entry into active service for a period of not less than one year."

The statute as originally enacted and as amended does not define the words in loco parentis. No regulation of the Veterans' Administration defines the words. The statute however is a remedial one and should be liberally construed in favor of the insured and to carry out his intentions. McClure v. United States, 9 Cir., 95 F.2d 744; Sovereign Camp, W. O. W. v. Cole, 124 Miss. 299, 86 So. 802. It is clear beyond any doubt that the soldier wished the plaintiff to receive the insurance. Did Congress use the words in loco parentis as descriptive words, or did it use the words with the common-law limitation upon them, namely that the relation could not exist unless the insured were a minor? We find no limitation in the words of Congress. We think they were used as descriptive words and were not to be restricted to the "stick in the bark" legal connotations usually attached at common law.

Under a similar statute, to wit, the War Risk Insurance Act of World War I, a United States District Court of Missouri held that the words in loco parentis were not used in the strict narrow sense which limited the relationship to minors. Meisner v. United States, D.C. 295 F. 866. This case was never appealed.

We find no other case that decides the precise question in relation to Government insurance. The defendants cite the cases of Howard v. United States, D.C. 2 F.2d 170, and Tudor v. United States, D.C. 36 F. 2d 386, which do not agree with the holding in the Meisner case, but the disagreement expressed is pure dicta and not necessary for the decision of either case. The Tudor case was appealed, but settled and dismissed before the Circuit Court of Appeals decided it.

The Government has cited a departmental opinion of October 22, 1943, in which it is recited that since 1920 the Veterans' Administration has consistently held that the relationship in loco parentis can come into existence only where the "child" is a...