Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This action was brought under the provisions of section 19 of the World War Veterans' Act of 1924, as amended (38 U.S.C. § 445 [38 USCA § 445]). Edward A. McCormack was a soldier in the World War, who enlisted in the army on July 16, 1917, and became a private in Company C, 165th U.S. Infantry. He was killed in action overseas on October 15, 1918.
According to the records of the War Department, he was absent from his regiment, without leave, from September 1 to October 14, 1917, and later from October 25, 1917. His mother, brother, and sister testified that he was with the 69th New York Regiment of the National Guard on the Mexican border in 1916 and until March, 1917, when that regiment returned to the United States. He was mustered out of service on March 9 of that year. During the greater part of the twelve months succeeding his return from Mexico, their testimony indicated that he lived at home in New York City and for about six months of the time worked for the New York Central. He seems to have actually rejoined his regiment (after his absence without leave) on June 16, 1918. On the 18th of June of that year he filed an application for war risk insurance in the sum of $10,000 payable to his mother, the plaintiff, Mary McCormack. The application contained the clause: "I authorize the necessary monthly deduction from my pay, or, if insufficient, from any deposit with the United States, in payment of the premiums as they become due, unless they be otherwise paid." The application was signed at Camp Merritt on June 18, 1918, and witnessed by the commanding officer. On the second page of the instrument was the statement subscribed by the commanding officer: "Charge of premium $6.50 will be made by me monthly, beginning with the month in which application is dated." Appended to this page were the words in the officer's handwriting: "This charge $6.50 entered on service record by me this 6/19/18."
At the time the application was made, the law provided that applications for insurance must be made within 120 days after enlistment or before the 12th day of April, 1918, whichever was the later date. War Risk Insurance Act, § 401, as added by Act Oct. 6, 1917, § 2 (40 Stat. 409), as amended by Act Feb. 12, 1918 (40 Stat. 438).
When the application was received by the War Risk Insurance Bureau in Washington, a record card was prepared. This record card contained a summary of the information given on the application, and on the side of it is the notation "Null and Void." Posey, a technical assistant in the United States Veterans' Bureau, who had been with the Bureau since June 10, 1918, and whose duties were to draft regulations and forms, testified that the words "Null and Void" were a notice to the writers of certificates of insurance that no certificates were to be issued in that case, and that it was the practice of his department to issue no certificate when a card was thus marked. The record card also contained the entries: "Date insurance effective 6/18/18," and "Certificate sent to 1 B." The figure and letter "1 B" referred to the single beneficiary, viz. the plaintiff, to whom insurance was made payable.
Posey also produced a premium card, not written until March 17, 1919, showing the certificate number, the application number, the applicant's name and address, the date when the application was made, and the notation "N & V" inserted in the blank opposite the month of June, 1918, and he testified that the letters "N & V" meant "Null and Void." The premium card contained blanks for the entry of premiums collected but showed no collections whatever. Posey likewise produced form the Veterans' Bureau file a certificate from the War Department to the Bureau made for the purpose of computation of adjusted compensation, showing that McCormack was in the army from July 16, 1917, to October 15, 1918.
The plaintiff testified that she had received a certificate or paper from Washington with a dark border, advising her that Edward McCormack had $10,000 insurance which she thought she gave to the Red Cross. But she made no showing of any effort to find or produce any such certificate, and in her application for compensation (sworn to November 12, 1920), in reply to the question in the official blank as to the number of the certificate of insurance issued to the deceased soldier, was the statement: "Insured but never received policy." While she and members of her family testified that they had no knowledge that McCormack was in the army from the time he came bank from the Mexican border to May, 1918, and that they first heard of his entering the service of the United States for the World War in May of that year, she swore in her application for compensation that he was "Drafted into U.S. Army Aug. 5, 1917."
In the memorandum opinion of the trial judge he held that McCormack entered the army in July, 1917, and that the 120 days after enlistment within which he might apply for insurance had elapsed before his application on June 18, 1918.
In view of the official records, we hold as a matter of law that McCormack's enlistment was in 1917, and not in 1918, and that no certificate of insurance was in fact issued or could lawfully have issued upon his belated application. The testimony of his relatives that after his return from the Mexican border they did not know of his re-enlistment in the army prior to May, 1918, may have been true. But any inference that he had not enlisted during the time he was said to have been living at home is dispelled both by the plaintiff's affidavit of November 12, 1920, when she applied for compensation, and by a mass of indubitable official records.
This action was begun on May 29, 1929. On July 3, 1930, before the cause came to trial, section 307 of the World War Veterans' Act of 1924, was amended (38 U.S.C. § 518 [38 USCA § 518]) so as to read as follows:
"Policies incontestable; exceptions; contest defined
"All contracts or policies of insurance heretofore or hereafter issued, reinstated, or converted shall be incontestable from the date of issuance, reinstatement, or conversion, except for fraud, nonpayment of premiums, or on the ground that the applicant was not a member of the military or naval forces of the United States, and subject to the provisions of section 447 of this title: Provided, That the insured under such contract or policy may, without prejudicing his rights, elect to make claim to the bureau or to bring suit under section 445 of this title on any prior contract or policy, and if found entitled thereto, shall, upon surrender of any subsequent contract or policy, be entitled to payments under the prior ...