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Banks v. United States

May 22, 1959

BANKS, PLAINTIFF, APPELLEE
v.
UNITED STATES OF AMERICA, DEFENDANT, APPELLANT



Author: Mathes

MATHES, D. J.: Death of the insured serviceman having occurred prior to the 1946 amendment of § 602(g) of the National Life Insurance Act eliminating the "restricted permitted class of beneficiaries as to policies maturing on or after August 1, 1946", the sole ground of contest in the District Court was appellant's contention that appellee, the sole claimant, did not qualify as

The applicable pre-1946 provisions of § 602 (g) are that: "The insurance shall be payable only to a * * * parent * * * of the insured." While pre-1946 § 601(f), insofar as relevant here, provided that: "The term * * * 'parent' * * * includes * * * persons who have stood in loco parentis to * * * the insured at any time prior to entry into active service for a period of not less than one year * * *".*fn*

From the uncontradicted evidence adduced at the trial, the District Court concluded that appellee had stood in loco parentis to the insured for more than one year prior to his entry into active service, and hence was qualified as designated beneficiary to receive the proceeds of the insurance.

The findings of fact upon which the conclusion is predicated are as follows:

"Plaintiff is a resident of Hartford, Connecticut. She was born August 14, 1885. While living on Main Street in Hartford in 1937 she became acquainted with Edward J. Alexander, born June 30, 1909, a musician who was estranged from his wife and was rooming alone at 12 Canton Street in a house whose backyard adjoined that of plaintiff. He was accustomed to drop in on plaintiff for coffee and sometimes for meals and reciprocated by mopping and sweeping stairways and running errands for plaintiff, who supported herself by minding pre-school children for working parents. Plaintiff occasionally did washing for Alexander and loaned or gave him shirts which had belonged to a son of plaintiff's * * * She admonished Alexander about excessive drinking, and at times had him sleep off in her apartment the effects of drinking so that he would be fit for his night's work with a band in a restaurant. In mid or late 1942 Alexander left Hartford with a circus band. He was inducted into military service March 24, 1943, at Richmond, Virginia. He intended to return to Hartford after the war and to live in plaintiff's house. He carried on a correspondence with plaintiff during his service, asking for and receiving her picture, for which he made a frame of native wood, and sending his picture to plaintiff.

"A large part of the correspondence was lost by plaintiff when she turned it over to a man she believed to be a lawyer to submit to the Veterans' Administration, which the man failed to do. Alexander sent plaintiff on one occasion a war bond as a gift. He took out a $10,000 National Service Life Insurance Policy, No. 10094071, effective April 1, 1943, designating a sister Lillian Alexander, as beneficiary. On his application for the insurance Mrs. Banks' name was typed in as beneficiary, X'ed out and his sister's name inserted. He designated Eleanor Alexander, wife, as sole beneficiary to receive the six months' death gratuity pay. He designated Mrs. Banks, the plaintiff, as emergency addressee. He paid premiums on his insurance policy for the period from April 2, 1943 to November 1, 1945.

"In March 1945 he wrote the Veterans' Administration stating that Mrs. Banks was the beneficiary. The Director of Insurance notified him that his sister had been the original beneficiary but that the certificate sent her at the address given by him had been returned unclaimed.Alexander thereupon made out and signed a change of beneficiary under the policy, giving the relationship as 'Parent (Loco-Parentis).'

"Alexander was injured by a falling tree and died October 18, 1945 on Saipan. This action was timely brought by plaintiff to recover on the policy. Efforts by government agencies, including the F.B.I., to locate the soldier's estranged wife, sister or other relatives have been unsuccesful. * * *

"The soldier looked on the plaintiff as a parent, as his closest remaining connection, the one to be notified if anything happened to him, the one he wished to benefit by his insurance in case of his death and to whom his effects should be sent, and her house the nearest thing to a home he could go to on release from the service, even though he never had lived in her home, was not related to her by blood or marriage, and had not supported her when working. * * *

"Plaintiff had formed an attachment for the soldier as an older adviser and friend, making him welcome in her home prior to his service for a period longer than the one year minimum of the statute. * * * His formality in address in the correspondence may be outweighed by his desire to exchange pictures and his care for hers. The relationship was to a large extent like that of a mother and an emancipated adult son."

Pointing to the fact that the Congress has "followed a consistent policy of restricting the class of beneficiaries during war-time and liberalizing them during times of peace", appellant urges that the term "in loco parentis ," as employed in pre-1946 § 601 (f) of the Act, should be given "its established, recognized common law meaning." And according to appellant: "At common law, the foster parent could not establish a loco parentis relationship unless he assumed the financial responsibility of the child."

This Court might be understood to have implied as much by way of dictum in Strauss v. United States, 160 F.2d 1017, 1019, (2d Cir.), cert. denied sub nom. Goldbaum v. United States, 331 U.S. 850 (1947), relving upon Niewiadomski v. United States, 159 F.2d 683 (6th Cir.), cert. denied, 331 U.S. 850 (1947). There we affirmed the trial court's finding and conclusion that the claimed beneficiary did not stand in loco parentis to the insured serviceman.

In Baumet v. United States, 191 F.2d 194 (2d Cir. 1951), reversed on other grounds, 344 U.S. 82 (1952), we again affirmed the trial court's finding and conclusion, this time that the claimed beneficiary did stand in loco parentis to the insured serviceman, and added the observation that in Strauss it was said that assumption of responsibility for support was necessary to establish existence of the relationship, "following the Sixth Circuit in Niewiadomski * * *."

More recently, in Helfgott v. United States, 250 F.2d 818 (2d Cir. 1958), this Court affirmed the trial court's finding and conclusion that there the claimed beneficiary did not stand in loco parentis to the insured serviceman, once more relying upon Niewiadomski as authority for saying that, in order to acquire the status of in loco parentis, the foster parent "should assume 'the obligations ...


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