Leahy v. United States

15 F.2d 949, 1926 U.S. App. LEXIS 3048

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 22, 1926
• Docket: No. 4856
• Status: Published

Opinion

GILBERT, Circuit Judge

(after stating the facts as above). The court below found, and it may be regarded as established by the record, that no such letter to the Veterans’ Bureau was received or recorded. The appellant asserts that she is entitled to the benefit of the presumption that a notice duly mailed by the insured was in ordinary course received by the bureau. In so contending, however, she assumes an unproven premise.

The presumption that a letter properly directed and mailed reached its destination and was received by the person to whom it was directed is a presumption, not of law, but of fact, and is “subject to control and limitation by other facts.” Schutz v. Jordan, 141 U. S. 213, 11 S. Ct. 906, 35 L. Ed. 705; Henderson v. Carbondale Coal & Coke Co., 140 U. S. 25, 11 S. Ct. 691, 35 L. Ed. 332. Several items of the evidence in the ease would tend to indicate that no such letter was in fact ever mailed. One is that the insured, who was alive and well and actively engaged in the practice of the law until accidentally killed nearly two years after the date of the alleged letter, sent no further communication to the bureau on the subject of the insurance, and never received an answer to the closing sentence of the. letter: “If a form is necessary for this change, please forward one to me.” Another is that, in her telegram to the bureau of January 4, 1924, the appellant, made no reference to such a letter, but stated that the insured “in his -lifetime advised undersigned wife that he executed change of benefieiary from sister to wife. Advise by wire whether records show application by Leahy to change benefieiary.” Still another is the testimony of Julia Harrington, witness for the appellant, who testified that in the fall of 1922, about a year after the alleged letter was said to have been mailed, the insured stated to her that he was going to change his policy from his sister to his wife.

Shepherdson v. United States (D. C.) 271 F. 330, cited by the appellant, differs from the case at bar, in that it was there conclusively shown that the letter was written by the insured and was witnessed by his superior officer. On like grounds, Farley v. United States (D. C.) 291 F. 238, and Claffy v. Forbes (D. C.) 280 F. 233, are distinguishable from the present case. Here the mailing of the letter not being proven, and the receipt of such a letter being disproven, the case was one for the determination of the court upon the preponderance of the evidence. Davidson S. S. Co. v. United States, 142 F. 315, 73 C. C. A. 425.

The burden of proof was upon the appellant to establish the fact that requisite steps were taken to change the beneficiary. We are not convinced that she sustained that burden of proof.

The decree is affirmed.