(concurring).
I have no figures, but I think we can take judicial notice of what I am sure is true here. Broadly, persons holding, since World War II, National Service Life Insurance would fall into four classes:
1. Those continuing in active service and paid by an army finance officer. (This would be a huge number.)
2. Those who have left the service and receive nothing from the government. (This would be a huge number.)
3. Those who have left the service and are receiving from the Veterans Administration some regular payments for disability. (This is a great number, as any bank teller can testify.)
4. Those like Lawrence Reed who left the service on a retirement permitted by reason of length of service and received retirement pay from an army finance officer. (This would be a large group numerically, but a very, very small group compared to those in groups one, two and three.)
We are not concerned with group 2 above for the reason that a member of it would have nothing coming to him from which the government could deduct.
Groups 1 and 3 under the government regulations were taken care of thoughtfully and expressly. The soldier in active service, group 1, could make an allotment with the army finance officer. 38 CFR, 1943 Supp. § 10.3406. If the army finance officer neglected to deduct the money the regulations provided that his policy would not lapse. 38 CFR, 1943 *630Supp. § 10.3416 and § 10.3417, 38 CFR 1946 Supp. § 10.3418.1 If the veteran was the recipient of periodical payments from the Veterans Administration, class 3, he could authorize deductions. 38 CFR, 1945 Supp. § 10.3408 and 38 CFR (1949) § 8.8. If the deduction was not made, he was protected against lapse. 38 CFR, 1946 Supp. § 10.3410. 38 CFR (1949) § 8.10. The validity of these regulations is not questioned.
But an express, clear and sharp regulation is not readily available to cover Lawrence Reed in group 4.
It would appear that the army in 1947 and early 1948 (and years immediately prior thereto) was continuing on into retirement allotments theretofore made by a soldier while on active service — if the retiring soldier in his papers for retirement answered affirmatively that he desired the allotment to be continued. This Reed did.
It was not until April 20, 1948,2 after Reed’s discharge, that the army required the execution of an independent and self-sufficient allotment form by a retiring soldier if he desired a continuance of the allotment. Surely that procedure was prospective for those retiring after the date of the new regulation.
If we must work this ease out within the four corners of the regulations, I would construe 38 CFR (1949) § 8.193 to protect Reed. It goes as follows:
“Lapse at discharge or resignation from active service. When the insured under a National Service life insurance policy shall provide for payment of premiums by allotment of pay, any previously authorized method of payment of premiums shall be deemed to be revoked. The insurance will lapse upon termination of the allotment because of discharge or resignation from the active service unless the premium be paid prior to expiration of the grace period.”
The second sentence is important.
I would say the reverse is implied. That, is to say: “The insurance will not lapse upon continuance of the allotment at the time of discharge or resignation from the active service * * * ” However, this would require the condition that enough money did become due for the army finance officer to deduct the premium. It did in Lawrence Reed’s case.
And, dehors the jumble of regulations, I would require the government to pay, absent a showing that Reed was playing sly, actually knowing all of the time that the army finance officer was not taking out the allotment. There is no such showing and I would not imply it. Twenty years ago a soldier could have been charged with knowing what was deducted.4 But today the deductions before one gets take-home pay are ordinarily known only to the social bore. Checkoffs for multiple items are the order of the day.
Here Reed asked his government (the army paymaster) to regularly deduct the insurance premium. It certainly is to be implied in fact that the government agreed to do so. Surely the procedure was within the authority of the army acting for the government. (Or, would we say, “Yes, it was authorized if it did perform the agreement it made, but not authorized if it did not perform it” ?)
*631The government through the Veterans Administration had already agreed to insured Reed’s life. Without proof of affirmative acquiescence on the part of Reed, I would think ordinary contract law (and I do not mean estoppel) would protect Reed.
Suppose that an individual was paying monthly premiums to a private insurance company on Policy “A”. Ilis endowment Policy “B” matures and is payable to him in installments so long as he lives. These installments are variable depending on interest rates and fund experience. Then suppose the company agrees to deduct the premiums for Policy “A” out of Policy “B” payments, but neglects to do so. Without a showing of affirmative acquiescence by the policyholder, how long would the courts fool around with the insurance company?
The government which broke a promise it was authorized to make should not gain the advantage.
. The cited sections do have provision that the poEcy will lapse if the allotment is “discontinued” by the service department. “Discontinued” implies affirmatively stopping something that was started. “Discontinued” should exclude just neglecting to do what one is supposed to do. However, by 1948 the word “discontinued” was gone. See 38 CFR (1949) § 8.17.
. Army Regulation 35-5520.
. See 38 CFR, 1943 Supp. § 10.3419.
. This concurrence does not question Smith v. United States, 292 U.S. 337, 54 S.Ct. 721, 78 L.Ed. 1295. Zimmerman, the sailor son of Mrs. Smith, did not request the army to continue his allotment from his previous enlistment. Presumably Zimmerman’s rate of pay remained the same upon his reenEstment. Therefore, he obviously knew his insurance was not being deducted when his pay check increased. Reed’s pay, on retirement, was calculated on a new scale and different from his active service pay.