United States v. Hoth

207 F.2d 386, 1953 U.S. App. LEXIS 2881

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 28, 1953
• Docket: 13294
• Status: Published

Opinions

HEALY, Circuit Judge.

The United States instituted this action by filing a pleading entitled “Complaint in the Nature of a Bill of Inter-pleader,” pursuant to § 19 of the World War Veterans’ Act of 1924 and § 617 of the National Service Life Insurance Act of 1940, each as amended, 38 U.S.C.A. §§ 445, 817. The individuals impleaded were alleged to have or claim an interest in a certain policy of National Service Life Insurance issued by the United States to one John M. Donley. Three of the named defendants (apparently brothers of the insured) made no appearance, and default was entered against them. Those appearing were appellees William E. Hoth, Rose E. Hoth, and Guy F. Whitman.

The complaint alleged that Donley, while in the service of the United States Army, was granted a $10,000 contract of National Service Life Insurance in which he designated his wife, Barbara M. Donley, as sole beneficiary; that Donley died in July 1943, while in the service, and that thereafter until the death of the beneficiary, in December of 1945, the latter was paid the insurance benefits periodically accruing. The complaint then alleges that while the United States stands ready to pay all further sums due under the policy to the person or persons lawfully entitled thereto, a dispute as to the persons so entitled has arisen, and that, by reason of the conflicting claims and interests of the defendants, doubt exists as to which are entitled to receive the same. The prayer is that the defendants be cited to appear and answer and that the court determine their rights and direct payment of the insurance benefits to such person or persons as the court may determine is entitled thereto.

Inasmuch as the insured was not survived by a child or children, upon the death of the designated beneficiary, by the terms of the National Service Life Insurance Act,¹ the insurance remaining unpaid became payable to the “parent or parents of the insured who last bore that relationship, if living, in equal shares”. By statutory definition the term “parent” includes “persons who have stood in loco parentis to a member of the military or naval forces at any time prior to entry into active service for a period of not less than one year, * *²

Defendants Rose E. Hoth, a maternal aunt of the insured, and William E. Hoth, an uncle by marriage, claiming to have priority within the permissive dev-olutionary class of § 602(h) (3) (C) of the Act, filed claims with the Veterans Administration for the insurance as did also defendant Guy F. Whitman, the insured’s stepfather. Each claimed as a person who had stood in loco parentis to the insured.³ While nothing to this ef-feet appears in the pleadings, or otherwise in the record, the brief for the United States informs us that the Veterans Administration conducted a full field investigation in order to ascertain which, if any, of the conflicting claimants qualified as a person or persons who had stood in loco parentis to the insured for not less than one year prior to the latter’s entry into the service, and who, in point of time, last bore that relationship to him. As a result of the investigation a subordinate agency of the Administration concluded that the claims of Rose E. Hoth and William E. Hoth should be allowed, and that of Guy F. Whitman denied. Whitman then appealed to the Board of Veterans Appeals which reversed the previous finding and instead allowed the claim of Whitman. Following this final administrative determination one of the Hoths gave notice of intention to institute legal action; whereupon the United States filed this suit.

In their answer to the complaint the Hoths alleged that they alone had stood in loco parentis to the insured, and that they were the last persons to stand in that position. Whitman, in his answer, alleged that he, as stepfather, had stood as a father in loco parentis to the insured from the time the latter was two years of age until his death.

The suit never reached the point of trial. From some source the suggestion seems to have emanated that the Hoths and Whitman, all three of whom apparently are elderly people, settle their differences by a compromise. According to counsel for the appellees the suggestion originated with counsel for the government. At any rate a stipulation was entered into between the Hoths on one side and Whitman on the other that all three stood in the relationship of loco parentis to the deceased and are entitled to share equally in the remaining proceeds of the policy.

The court made findings declaring the facts of the case as established by the uncontroverted allegations of the complaint, recited the compromise by the defendants of their differences and their stipulation that judgment be entered in accordance therewith, and found that Whitman and the two Hoths all stood in the position of loco parentis to the insured for a period exceeding one year prior to his death and were standing in that relationship at the time of his death, and are entitled to share equally in the proceeds of the insurance contract. Conclusions of law appropriate to such findings were made and judgment entered in conformity therewith and with the findings of fact.

In support of its appeal the United States points out that the findings, conclusions and judgment below are based, not on evidence, but upon the stipulation and compromise agreed to by the defendants. The argument is that by judicially sanctioning the settlement agreement the court has permitted the claimants to National Service Life Insurance policy benefits to determine that they qualify as beneficiaries within the limitations and as defined by the Act of Congress, all of which, it is said, runs counter to the purpose and intent of Congress as disclosed in various provisions of the Act, 38 U.S. C.A. § 801 et seq.

We shall not go into the particulars of the legal argument, since we agree with it as an abstract proposition. It is evident that the trial court — erroneously as the government here contends and as we agree — regarded the United States as occupying the position of an ordinary stakeholder, with the impleaded individuals being the only parties having an interest in the disposition of the fund. We desire merely to point out that the government appears to have invited the procedure followed, participated in it, and raised no question in the court below concerning its propriety. The record shows affirmatively that the findings, conclusions of law, and judgment were presented to the court by counsel for the government for the court’s adoption. It is strongly inferable, and is not denied, that the findings and judgment were actually prepared by counsel for the government. The record discloses no exception or objection to the findings or to the entry of the judgment predicated on them or any intimation on the part of the government that the Act inferentially precludes judgment otherwise than on the basis of evidence actually taken.⁴ The United States is not entitled, any more than the ordinary litigant, to raise questions on the appeal not presented or suggested below. Nor is it entitled on appeal to take advantage of error which it has itself invited. To hold otherwise would be to encourage interminable delay.

Apart from this posture of affairs it would seem that the National Service Insurance Act has not been materially outraged or the public interest thwarted by the judgment entered below. As observed earlier in the opinion, we have it on the authority of the government’s brief that the Veterans Administration, after a full investigation of the facts, found that either the Hoths or Whitman were legally entitled to the unpaid proceeds of the policy, but that the question as to which should have them was so close as to lead to a division of opinion within the Administration itself. Thus we can feel confident that the trial court’s judgment at least roughly approximates the Congressional policy and is not substantially out of line with the facts.

Affirmed.

1 . Section 602(h) (3) (C), 38 U.S.C.A. § 802(h) (3) (C).

2 . Section 601(f), 38 Ü.S.C.A. § 801(f).

3 . Three brothers of the insured, of the wbole or of the half blood, also filed claims with the Veterans Administration as beneficiaries in a deferred classification, but, as indicated above, they failed to make an appearance in the suit.

4 . The letter of the Assistant Attorney General, referred to in Judge Bone’s dissent, was not filed with the court below until several days after judgment was entered. Accordingly we can not assume that the communication timely apprised the court of the error committed,