the Act did not include Brothers and Sisters by adoption.
Congress itself has displayed the same liberal attitude towards the naming of beneficiaries in war risk policies for by amendment in 1946 it removed all restrictions in naming beneficiaries, and the soldier, since August 1st, 1946, can name anyone he chooses as his beneficiary. Of course, the present case is much stronger in point of fact than either the Zazove or Jadin cases cited above. In the present case the soldier lived in the same household with the named beneficiary from the age of ten years until he entered the service, and the uncontradicted evidence shows that for a period of three years the names beneficiary contributed towards the financial support of the soldier by working in a laundry. Thus, the named beneficiary qualifies as a person standing in loco parentis even under the strictest common law interpretation of the term, because the status was assumed during minority, and support was furnished during a considerable period by the named beneficiary.
The Court does not attach any significance to the fact that the soldier was away from the household of the named beneficiary for two years from 1937 to 1939, while he was in the C.C.C. Camp, or to the fact that the soldier became self-supporting when he was nineteen years of age. As to the first item, his absence at the C.C.C. Camp was with the express permission and approval of the named beneficiary, and the soldier returned to her household upon his discharge in 1939. In addition, the testimony establishes that the named beneficiary wrote to him frequently while at Camp, and sent him packages of food and clothing at regular intervals. The soldier on his part made an allotment of $ 22.00 per month in her favor while at the C.C.C. Camp, thus showing his continued affection and regard for the named beneficiary. The same circumstance was present in the Leyerly case, cited above, and the Circuit Court held that this did not terminate the relationship of loco parentis because this relationship, once it is established and continued for at least one year at any time prior to entry into service, qualifies the names beneficiary as a person standing in loco parentis.
As to the soldier becoming self-supporting after he was nineteen years of age, it must be remembered that the Act of Congress sets up only two conditions on the relationship of loco parentis, first that it has to exist for a period of at least one year, and secondly that this minimum period of one year can be at any time prior to the soldier's entry into active service. Thus, it is manifest that once the relationship of loco parentis exists for a period of one year, it could be followed by any other relationship without affecting the right of the person standing in loco parentis, for that year, to qualify as a named beneficiary.
Helen Burke, as the natural Mother, of the soldier, has no vested right in the soldier's insurance because the Act of Congress relating to National Service Life Insurance defines the term 'Parent', 'Father and 'Mother' to include '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.' A person who stood in the relationship of loco parentis to the soldier for one year prior to entering service would take precedence over a natural parent who is not a named beneficiary. It is thus clear, that Congress contemplated a relationship or status based on facts, and not on circumstances of birth. See Leyerly v. U.S. cited above. As Plaintiff in this case, Helen Burke had the double burden of proving first, that Mary Burke was not a person in loco parentis to the soldier, and secondly, that Roy Burke, the contingent beneficiary, was not the Brother of the soldier. The evidence presented proves conclusively that Roy Burke and the soldier were both of the same Father. The regulations of the Veterans' Administration, issued under the authority of the Act of Congress, provided that the named beneficiaries may be 'Brother or Sister (including those of the half-blood)'. See Sec. 10.3446 of Regulations, issued October 16th, 1942, appearing in 7 F.R. 8363. However, it is not necessary for the Court to make a determination of the rights of Roy Burke as the half-brother of the soldier, because the Court has found that Mary Burke, the principal beneficiary, is a person standing in loco parentis to the soldier. It must be pointed out that the Plaintiff has not met the burden upon her of proving that neither Mary Burke, principal beneficiary, nor Roy Burke, contingent beneficiary, are within the permitted class of beneficiaries under the Act of Congress.
Trial was had before the Court sitting without a jury, despite the Plaintiff's insistence on a jury trial. The Court was impelled to hear this case without a jury because this action is against the Government and Amendment 7 of the Constitution, guaranteeing trial by jury, has no application in its own force in actions against the Government on War Risk Policies. Jury trials are not a matter of right for persons asserting claims against the sovereign. Galloway v. U.S., 1943, 319 U.S. 372, 63 S. Ct. 1077, 87 L. Ed. 1458, Rehearing denied 320 U.S. 214, 63 S. Ct. 1443, 87 L. Ed. 1851. Furthermore, the procedure in actions of this kind are governed generally by the Tucker Act, Title 28, U.S.C.A. § 41, Subdivision 20 (now § 2402), which provides inter alia: 'All suits brought and tried under the provisions of this paragraph shall be tried * * * without a jury.' At the close of the testimony the additional Defendants presented a Motion to Dismiss the Plaintiff's Case, and to enter a Directed Verdict for Mary Burke, Additional Defendant. In the light of Plaintiff's failure to meet her burden of proof as set out above, this Court would have been compelled to enter a directed verdict for the additional Defendant, Mary Burke, even though the case had been tried before a jury, so that the question of the Plaintiff's right to a jury in this case becomes, in a large measure, only academic.
Counsel for the additional Defendant, Mary Burke, have presented a request for the allowance of counsel fees in the amount of $ 1,000.00 being 10% of the face amount of the policy in suit. The Court finds that the counsel fee requested is reasonable for the services rendered, and since it is no more than 10% of the amount in suit, that it does not violate the provisions of the Act of June 7th, 1924, 43 Stat. 628, as amended, 38 U.S.C.A. § 551.
The Court therefore finds that the named beneficiary, Mary Burke, is a person standing in loco parentis to the soldier in accordance with the National Service Life Insurance Act, and, accordingly, enters its judgment in favor of Mary Burke, additional Defendant in the above case. Counsel for the additional Defendant are directed to prepare an appropriate decree for the Court in connection with this finding and the award of counsel fee.
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