Gann v. Meek

McCORD, Circuit Judge.

This is an action to determine ownership of the proceeds of a policy of National Service Life Insurance issued to Corporal Arthur B. Ervin, United States Marine Corps, who was killed in combat on the island of Saipan during the late war.

The question presented for our determination is whether a change of beneficiary from the wife to the mother was effected. On the trial below a jury awarded the proceeds of the insurance policy to the mother.

It was stipulated by the parties that the certificate or policy of insurance was issued on March 22, 1943, and that the appellee, mother of deceased, was the named beneficiary at the time the insurance was taken out; that Corporal Ervin later married the appellant, whose name was at that time Odena Gladys Good, on July 17, 1943, and *858made formal request for change of beneficiary from his mother to his wife on August 24, 1943; that on April 29, 1944, Ervin wrote his brother, Harley Ervin, nicknamed “Bud”, a letter in which he stated that he had changed the beneficiary of his policy from his wife to his mother.1

The evidence shows that Ervin married the appellant while home on sick leave, and that he remained at home only a few days when he again joined his command in the South Pacific; that he saw combat service at Pearl Harbor, Guadalcanal, and the Marshall Islands, that he was wounded on Kwajalein Atoll and evacuated to the hospital at Honolulu, and was awarded the Purple Heart and Navy Cross by Admiral Nimitz, and was killed on the island of Saipan.

If the letter written by Corporal Ervin to his brother was all the evidence upon which to predicate a decision we would conclude that it was not enough to carry the case to the jury. But the letter did not constitute the only evidence. Corporal Maurice Crawford and the deceased, Arthur Ervin, both served in the Marine Corps during the late war, and while they were not in the same command, they each served in the same combat area at about the same time Ervin was killed. Crawford testified that everything in that area was in a state of confusion, and that mail service was irregular and loss of mail frequent. This evidence was further substantiated by that portion of Ervin’s letter wherein he somewhat ironically and subtly stated, “Received your letter last nite (somewhat delayed).” Moreover, the conditions surrounding and governing the movement of the mails in the combat areas of the South Pacific where the Marines were spearheading the invasions from island to island were of common knowledge; letters written by the Marines were first lodged with a company clerk, or someone else designated in each company to receive them; thereafter they were usually censored by an officer, and then forwarded by the first available government transportation to the Fleet Postoffice, San Francisco, California, from which point they were relayed to their final address in the United States. It was also common knowledge that many ships and planes carrying mail to and from the United States were sunk and shot down, and all mail aboard irretrievably lost. Moreover, it was a well known fact that, during this period, mail piled up in the offices of the Veterans Administration at Washington until months elapsed before requested changes of beneficiary were made, and during the interim period many letters were either misplaced or lost. Certainly the evidence presented, when viewed in the light of facts constituting common knowledge, made a jury question as to whether Ervin had done all he *859reasonably could to effect a change of beneficiary. From this evidence the jury could reasonably have inferred that Corporal Ervin did request the Veterans Administration to change his beneficiary from his wife back to his mother, and that his letter of request was lost in that maelstrom of carnage and death on the island of Saipan.2

It is well settled that mere intention alone, no matter how strong, is not sufficient to effect a change of beneficiaries in an insurance policy. But where, as here, abundant evidence is introduced to show that the insured soldier has done all he reasonably could to comply with the change provisions of the policy, justice requires that we invoke equitable rules in order to give effect to a plainly manifest intent. Gifford v. United States, D. C., 289 F. 833; Reid v. Durboraw, 4 Cir., 272 F. 99; Bradley v. United States, 10 Cir., 143 F.2d 573; Claffy v. Forbes, D.C., 280 F. 233; Roberts v. United States, 4 Cir., 157 F.2d 906; Woods v. United States, D.C., 69 F.Supp. 760.

The cases of Bradley v. United States, 10 Cir., 143 F.2d 573, and Collins v. United States, 10 Cir., 161 F.2d 64, relied upon bv appellant, are not in conflict with our holding here. In both of these cases the statements of the soldiers, and the circumstances under which the statements were made, were very different from this case. In the Bradley case the soldier was killed while stationed at Windsor Locks, Connecticut. It was not even contended that he had executed or even tried to execute a change of beneficiary, and it was proved that he had stated to his wife while they were in California that he would attend to the matter of changing his insurance when he got to Connecticut. Here Corporal Ervin wrote his brother shortly before his death, not that he wanted or intended to change his beneficiary, but that “ * * * I did change my insurance if any one gets it Mom zvill get it all> I didn’t change it because of what you said in your letter, I had allready for a couple reasons of my own, * * (Italics supplied.) The above statement in Marine Ervin’s letter, which was admittedly genuine, considering the circumstances under which it was made, is almost equivalent to a dying declaration. Ervin knew how to change the beneficiary of his policy, since the record shows without dispute that he had changed it once before. His statement, therefore, cannot be called a conclusion or opinion, but warrants the inference that he had already written the Veterans0 Administration requesting such change before he wrote this letter. To hold otherwise is but to dispute the sanctity of a soldier’s word on the field of battle, as evidenced by a letter to his own brother.

The facts of this case bring it within the orbit of Roberts v. United States, 4 Cir., 157 F.2d 906. If, as a matter of law, there was a change of beneficiary in the Roberts case, it cannot with reason be said as a matter of law that there was no change of beneficiary in the case at bar. Moreover, this case is much stronger than the Roberts case. There the insured was a Naval officer stationed at Jacksonville, Florida, where he had the time and all facilities to change the beneficiary in his policy, whereas this Marine was on Saipan engaged in a fight to the death.

Collins v. United States, 10 Cir., 161 F.2d 64, bears us out in the holding that literal compliance with the provisions of an insurance policy similar to the one in question is never absolutely necessary.

It is admitted that the quoted letter from the dead Marine Ervin to his brother was genuine. Moreover, it was stipulated that the letter constituted part of the evidence in the case. We are of opinion that it was admissible. May v. Brown, 144 Tex. 350, 190 S.W.2d 715, 717, 720, 165 A.L.R. 1180; McElroy v. Phink, 97 Tex. 147, 76 S.W. 755; Gaines v. Relf, 12 How. (U.S.) 472, 13 L.Ed. 1071; Re Jessup, 81 Cal. 408, 21 P. 976, 22 P. 742, 1028, 6 L.R.A. 594; Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706.

It therefore becomes manifest that this case presented a question for the jury as to whether Corporal Ervin had done all *860he reasonably could to effect a change of beneficiary from his wife to his mother.3

We find no reversible error in the record and the judgment is affirmed.

“Hello Bud April 29th

“I’m sorrow that I have not written to you long before this — Received your letter last nite (somewhat delayed) So will ans. right back How. are things going with you these days — Kay, holding you down — me—I couldn’t be better as you probably know by this time I’m back to duty with my old company, certainly was glad to get back with the guys again my side is O. K. now and I can do allmost everything I did before, It never bothers me in the least, Guess you know that it was close, Lavada wrote me a letter just before she went to Seattle, and I’m looking for the Chief out this way any day now, By just reading your letter over I can’t tell wheather or not you like the idea of waiting so long, you got a break in a way, I got a letter from Mom every 4 or 5 days Speaking of Mother Bud' I did change my insurance if any one gets it Mom will get it all, I didn’t change it because of what you said in your letter, I had

allready for a couple reasons of my own, one I don’t want ‘Neg’ ever to feel obligated to me, but I know that neither you or Kay would and never did lie to me So I want to ask you something, but before I ask you I want to tell you how I feel about ‘Neg’. Bud she is the only one for me but things are all the way oka not at all, know what I mean? Write me and tell me if things are not that way. I don’t want to plan on something and things go haywire, Let me know, Bud I have some good news for you, Do you know what the “Navy Cross” is? I was awarded the “Navy Cross” by Admiral Nimitz last Wed. I am dam proud of it and Sending it home to Mother Wish you could have been here Bud to have seen me get it Wonder what H. L. will think? Kay I’ll send you that hula skirt this time if I can find a good one, Gotta close now will be waiting for your ans. Love to you both “Your brother

“Cpl Arthur B. Ervin.”

“ * * * the original of the Government Insurance Report Form filled out by Hardwick in Nebraska and filed with the War Department, we know to have been lost. Other important papers and documents may also have been lost. * * * ” Mitchell v. U. S. et al., 165 F.2d 758. Cj. Chichiarelli v. United States, D.C., 26 F.2d 484, 486.

McKewen v. McKewen et al., 5th Cir., 165 F.2d 761.