Opinion
No. 20002.
November 8, 1929.
Clarence Anderson, of Seattle, Wash., for plaintiff.
Lester Pope, Sp. Counsel U.S. Veterans Bureau, of Seattle, Wash., for defendant.
James M. Hay, of Seattle, Wash., for intervener.
At Law. Action by Malcom Tudor against the United States, in which James M. Wilson, as administrator of the estate of Simeon L. Matthews Schrouder, deceased, intervened. Judgment for intervener.
This is an action by the beneficiary named in a war risk insurance policy, in which the administrator of the insured's estate intervenes. The evidence is that the insured, Schrouder, was born in Jamaica in 1892, registered for the draft in Seattle, and made one of the local quota, and, as of normal health and physically fit, was inducted in military service in October, 1917. But arriving at Camp Grant, where the exigencies of service rather than of quota controlled, he was found afflicted with chronic nephritis antedating service and disabling him therefor, and accordingly he was discharged March 24, 1918.
In the meantime, however, and February 10, 1918, the usual insurance in amount $10,000 was imposed upon him in favor of plaintiff as postdeath beneficiary characterized as insured's father.
Schrouder discharged, allowed the policy to lapse April 1, 1918, and the premiums theretofore deducted from his pay in amount $13.60 were "refunded 12-14-25." Schrouder married in November, 1919, and in August, 1922, applied for compensation on the score of "disability" of "unknown" extent due to "Bright's disease" which "began October, 1917," by reason of "rigid training." Therein on oath he stated that for a "few months just before entering service" he earned $155 per month in "dining car service," and for one year in 1916-1917, he earned $125 per month as "automobile mechanic"; that his present employment was with a "Steamship Co." at wages of $130 per month, and that in his insurance aforesaid the named beneficiary was plaintiff, "foster-father." There is evidence that the application was sometime granted. In June, 1926, insured died of chronic nephritis and heart ailments, and in October, 1926, plaintiff filed affidavits in support of his claim to the amount of the policy. Therein, amongst other things, he avers he was insured's foster father, became acquainted with insured in "1911, deceased had been sick and claimant took him to claimant's home, * * * from 1911 to 1919, contributed an average of $50.00 per month" towards insured's support, from 1919 to 1925, furnished insured a house of $50 per month rental value, and "from January 1925 to insured's death, contributed an average of about $20.00 per month"; that no other person contributed to insured's support save "his government allowance"; and that expenses for burial of insured were incurred and by affiant.
In these affidavits on bureau forms, is a question: "What agreement, if any, was entered into by you and the deceased if and when he placed himself in your custody?" To which plaintiff responded: "Same as answer to question 3" — and that is merely that he became acquainted with insured in 1911, had been sick, took him to affiant's home.
The result was that the lapsed policy, on which premiums had been refunded, after insured had died of diseases which evidently originated prior and subsequent to military service, was reinstated for reasons, if not incomprehensible, at least not in evidence. At the trial plaintiff testifies that he was 56 years old, a "countryman" of insured's, was introduced to him in 1915, brought him sick to plaintiff's boarding house in 1916 and they lived together until insured was drafted and also after discharge until his marriage in 1919; that plaintiff supported insured, paid his doctor bill and all his bills, they were as son and father, insured handled all plaintiff's business, collected rents, kept the money for bills, gave little to plaintiff, insured did not pay for his board, insured worked 6 or 8 months in a garage before he was drafted, and plaintiff at the club heard he worked for a railway after he was discharged, after marriage insured lived gratis in a house of plaintiff's, plaintiff buried him and paid part of the funeral expenses, the government paying part, and plaintiff got insured's auto and paid subsequent installments upon it.
Of plaintiff's witnesses, Mrs. Gardner testified that in 1916 insured came to her house, and in plaintiff's room therein they lived until insured was drafted; that insured paid his own rent, $2 or $3 per week, and board; that insured was not sick and was away working all the time. Pitter testifies insured was sick when he and plaintiff commenced to live together, had carbuncles, insured worked most of the time, and he and plaintiff were as son and father. This witness had made an affidavit "of my own personal knowledge" corroborating all plaintiff's averments in his aforesaid affidavit claiming the insurance, but at the trial testified only as aforesaid. Mrs. Pitter testifies insured sometimes cared for plaintiff's business, and during 1923, 1924, worked as a waiter on a boat.
In behalf of the intervener the insured's widow testifies they lived in a house of plaintiff's for five years, paying the taxes, but no rent, and moved when plaintiff demanded rent; that only once did insured work for plaintiff, and that insured told her, when he lived with plaintiff, to him insured gave his earnings; that plaintiff disapproved the marriage, and after it insured worked in a garage and on a boat.
At the trial it was stipulated that insured became totally and permanently disabled on November 6, 1925, and that therefrom the insurance is payable $53.05 per month, in amount $9,226.10.
As originally enacted and when the policy issued, the War Risk Insurance Act (section 402, 40 Stat. 409) limited beneficiaries to the insured and his spouse, child, grandchild, parent, brother, or sister, and defined (section 22) "parent" to include father, mother, grandfather, grandmother, stepfather, and stepmother. Act March 4, 1925 ( 43 Stat. 1308, § 12 [ 38 USCA § 511]) re-enacted section 402 aforesaid, but added uncle, aunt, nephew, niece, brother-in-law, and sister-in-law. Act June 7, 1924, 43 Stat. 607, § 3 (38 USCA § 424), provides that where used in the Act, "unless the context otherwise requires (paragraph 4 [38 US CA § 424, par. 4]), the term `parent' includes a father, mother, grandfather, grandmother, father through adoption, mother through adoption, stepfather, and stepmother," and that (paragraph 5 [38 USCA § 424, par. 5]) "the terms `father' and `mother' include stepfathers and stepmothers, fathers and mothers through adoption, and persons who have stood in loco parentis to a member of the military or naval forces at any time prior to his enlistment or induction for a period of not less than one year."
Examination of all the various amendments and re-enactments of the War Risk Insurance Act discloses that, in the parts thereof devoted to various gratuities, the terms "father" and "mother" are generally used, the term "parent" as a sometime synonym by "the context" required; but in the part devoted to insurance the term "parent" is exclusively used. It would seem, therefore, that the beneficiaries of insurance do not include a person in loco parentis. They are excluded from the insurance, but admitted to the gratuities. Why Congress thus discriminated is not apparent, no more than why it excluded grandparents from the gratuities, but admitted them to the insurance. Nor is it material. The will of Congress controls, and to ascertain it every word must be given effect, every term must be given the meaning by Congress prescribed. When in repeated enactments it defined "parent" exclusive of persons in loco parentis, "father" and "mother" inclusive of them, and then limited insurance beneficiaries to "parent," its intent is clear; and it and settled principles of construction would be violated did the court do what Congress did not, viz., extend "parent" to include persons in loco parentis.
Moreover, during all the time the plaintiff is alleged to have been in loco parentis to insured, the latter had attained his majority, was an adult mentally and physically competent to provide for himself. In such circumstances the relationship has no legal sanction. It was so held in Howard v. U.S. (D.C.) 2 F.2d 170, the reasoning of which is believed to be sound in principle.
That a close and affectionate status existed between plaintiff and insured for more than one year prior to the latter's induction into service, that insured characterized plaintiff as father and desired him as beneficiary at least when the policy issued, is manifest. But that is not enough. In addition to this affection, label, and desire, must be legal competency and performance of attendant obligations, in respect to both of which the proof fails.
At the trial plaintiff testified altogether generally to receiving insured ill in 1916 and providing him with a home until induction into service; that he supported insured, paid his doctor's bill and all other bills; that insured collected moneys due plaintiff of which the latter received little; and that he buried insured and paid part of the expense. But in all this he has no material corroboration where ample corroboration, if true, must be available. On the other hand, Mrs. Gardner testified that insured was not sick, worked all the time, paid his rent and board. And that insured was industrious and earned money ample for all his reasonable needs appears by his own affidavit for compensation and some corroborated by the testimony of Mr. and Mrs. Pitter.
In striking contrast to plaintiff's general testimony at trial is his affidavit aforesaid claiming the insurance. In that, he deals with particulars, and avers he provided home and specific moneys in support of insured from 1911, whereas at trial he says from 1916.
Since in 1911 insured was two years under majority, and both he and plaintiff competent to enter into the relation claimed, within the rule of Howard's Case, supra, which case was in print two years before plaintiff made the affidavit aforesaid, it is highly probable that in the latter plaintiff falsely averred the inception of the relation in 1911 to escape the effect of said case. To make out a case, false allegations in ex parte affidavits may be ventured before a bureau, but not in adversary proceedings in court.
Unexplainable and unexplained, his falsity then discredits him now. That in behalf of insured he assumed and discharged a father's duties of care and support to a son is not proven.
Accordingly, the intervener is entitled to judgment.