Opinion
No. 103, Docket 20359.
April 8, 1947. Writ of Certiorari Denied June 16, 1947. See 67 S.Ct. 1741.
Appeal from the District Court of the United States for the Southern District of New York.
Action by Harry R. Strauss, individually and as Administrator of Morris P. Strauss against the United States of America and Sadie Goldbaum to collect the proceeds of a National Life Insurance policy naming Sadie Goldbaum as beneficiary. From a decree for the plaintiff, Sadie Goldbaum appeals.
Affirmed.
This action was brought by Harry R. Strauss, father and nearest living kin of Morris P. Strauss, deceased, to collect the proceeds of a National Life Insurance Policy issued to Morris P. Strauss after his enlistment in the United States Navy. The policy named as beneficiary the defendant, Sadie Goldbaum, stating her relationship to be in loco parentis. The insured died on or about November 11, 1943, while on active duty, and his father claimed the benefits under the policy. This claim was denied by the Veterans' Administration, and plaintiff then brought suit to recover on the policy, on the grounds that Sadie Goldbaum was not legally in loco parentis and consequently not within the permissible class of beneficiaries under the National Life Insurance Act, 38 U.S.C.A. §§ 801(f) and 802(g). The case was tried before a judge without a jury.
The facts as found by the court below are briefly as follows: "From about 1925 the Jewish Welfare Society had cared for the Strauss family, which then consisted of the father, mother and three children. One of the children died in 1929. The mother died in 1932. In August, 1934, when the insured was nine years old, he was placed by the Society in the home of the defendant, Sadie Goldbaum, where she resided with her husband, Samuel Goldbaum, and their children. The Goldbaums had made application to the Society to be allowed to take children for boarding under the usual arrangement whereby the Society pays for care and maintenance. The Society paid the Goldbaums $6.00 per week and provided the insured with spending money and clothing. This arrangement continued up until October, 1941, when the defendant, Sadie Goldbaum, demanded from the Society an increase in the allowance for board. The allowance was then increased to $6.50 per week and later to $7.00 per week. At the time she made the request, defendant stated that unless the increase was granted, she could no longer care for the boy * * * The Jewish Welfare Society continued to pay the Goldbaums an allowance for board and lodging for the said Morris P. Strauss up until June 24, 1942. For some time prior to that Morris P. Strauss had been working part time while attending school. In June, 1942, he had left school and was then working full time as a clerk in a drug store. The Society notified the Goldbaums that he would be obligated for his own board after June 24, 1942 [the date of his 17th birthday]. From that time on it made no further payments to the Goldbaums. He continued to reside with the Goldbaums up until the time of his enlistment on December 7, 1942."
Harry R. Stauss has been in poor health for many years, and has been unable to support himself or his family. However, it does not appear that he ever contemplated giving his son up for adoption, and certainly no such action was ever taken. Authority over the boy was vested in the Jewish Welfare Society which made the important decisions as to his education and care. The court below found that the defendant Sadie Goldbaum did not stand in loco parentis to the insured, that she was therefore not entitled to the benefits of the policy, and that consequently, Harry R. Strauss, individually, should receive the benefits thereof. From a judgment for the plaintiff, defendant appeals.
James P. Cotter, of Buffalo, N.Y., for plaintiff-respondent.
James O. Moore, Sr., of Buffalo, N.Y., for defendant-appellant.
George L. Grobe, U.S.Atty., for the Northern District of New York, of Buffalo, N.Y., for defendant.
Before SWAN, CHASE and FRANK, Circuit Judges.
The only issue is whether the court below correctly concluded that the defendant did not stand in loco parentis to the insured. It is clear that the insured thought she did, and that he wished her to receive the proceeds of the policy, but this is not decisive of the question. The National Insurance Act, 38 U.S.C.A. § 802(g) provides that "the insurance shall be payable only to a widow, widower, child * * * parent * * * brother or sister of the insured. The insured shall have the right to designate the beneficiary or beneficiaries of the insurance, but only within the classes herein provided * * *". Section 801(f) of the same Act defines "parent" as follows: "the terms `parent', `father', and `mother' include a father, mother, father through adoption, mother through adoption, 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."
Without doubt, there was a strong bond of affection between the defendant and insured, but that is not sufficient to establish the fact that she stood in loco parentis. There are certain obligations inherent in the parental relationship to a minor child, obligations which the defendant never undertook to perform, and never showed any intention of performing. Foremost among these obligations is the responsibility for the support of the child. Howard v. United States, D.C.Ky., 2 F.2d 170; Meisner v. United States, D.C.Mo., 295 F. 866. This responsibility was neither borne nor contemplated by the defendant. While it is undoubtedly true that she was exceedingly fond of the insured, her statement at the time she requested an increase in the allowance from the Society was evidence of the fact that she felt no real responsibility for his support. Cf. Horsman v. United States, D.C., 68 F. Supp. 522; Baldwin v. United States, D.C., 68 F. Supp. 657. Defendant claims that the allowance given her by the Society was insufficient for the support of the child, and that she supplemented the allowance with her own funds. However, the evidence on the matter is equivocal, and there is no finding to that effect. Whether defendant actually did become responsible for the boy's support after the payments from the Society ceased need not be considered, since the elapsed time between his seventeenth birthday and the date of his enlistment was less than the period of one year required by the terms of the statute.
The cases dealing with the problem of whether an individual may be in loco parentis to an adult are not applicable here. In Zazove v. United States, 7 Cir., 156 F.2d 24, the court appeared to think that it was possible to be in loco parentis to an adult although neither of the parties involved contemplated any financial dependence. But the duty of any parent to support a child ceases when the child comes of age, and consequently, the lack of intention to be responsible for the support of an adult does not necessarily negate the existence of the parental relationship. However, the parent of a minor generally is responsible for the support of the child, and we believe that such responsibility is necessary to establish the relationship of one in loco parentis. See Niewiadomski v. United States, 6 Cir., 159 F.2d 683. The court below found that up to the time of the insured's 17th birthday, the defendant never assumed the parental obligation of providing for his care and support, and that she had never shown any intention of assuming that obligation. That finding was supported by the evidence, and on that basis we think the judgment below should be affirmed.
Affirmed.