The opinion of the court was delivered by: FOLLMER
This action was brought by Joseph Colizza, the father of a deceased veteran, for a judgment against the United States of America under 38 U.S.C.A. § 445 to recover on a $ 10,000 policy of National Service Life Insurance.
At the trial of the case the plaintiff, father of the deceased veteran, and the veteran's sister were the only witnesses. At the conclusion of the plaintiff's case the defendant moved the Court for a directed verdict, alleging that the facts proven did not constitute a cause of action. The Court granted the defendant's motion and instructed the jury to return a verdict in favor of the defendant. The matter is now before the Court on motion of plaintiff for a new trial.
The relevant facts as disclosed by the testimony of the witnesses and the admissions in the pleadings are as follows:
Joseph H. Colizza, son of the plaintiff, entered into active service with the Army of the United States on or about March 27, 1943, and continued in such service until his honorable discharge on or about October 20, 1945. While on active service as aforesaid, a policy of insurance in the sum of $ 10,000 was granted to the said Joseph H. Colizza under the authority of the National Service Life Insurance Act of 1940, as amended, 38 U.S.C.A. § 801 et seq., in which the plaintiff was named the beneficiary. The policy was evidenced by Certificate No. N-5 772 839. This policy remained in force until December 29, 1945, at which time the veteran permitted it to lapse for non-payment of premiums.
On November 20, 1945, the veteran entered St. Joseph's Hospital, Pittsburgh, Pennsylvania, where he remained until December 11, 1946, when he was transferred to the Veterans Administration Hospital, Aspinwall, Pennsylvania, remaining there until his transfer on January 26, 1947, to the Veterans Administration Hospital, Bronx, New York, where he remained until his death on February 21, 1947. He was continuously hospitalized from November 20, 1946, until his death.
On or about November 27, 1946, after his admission to St. Joseph's Hospital, veteran filed with the Veterans' Administration an application for reinstatement and tendered therewith two months back premiums as required by the regulations, for which a receipt was issued. Thereafter monthly premium payments of $ 6.50 each were made to the Veterans' Administration, for which receipts were issued.
On or about March 5, 1947, plaintiff filed claim for the benefits under the policy, together with due notice and proof of the death of the insured veteran. On or about September 29, 1947, plaintiff was notified that the claim was disallowed for the reason that the insured had no insurance in force at the time of his death.
The pertinent portions of the Act and the regulations promulgated thereunder are as follows:
38 U.S.C.A. § 802(c)(2) provides, inter alia: '* * * any individual who has had active service between October 8, 1940, and September 2, 1945, both dates inclusive, shall be granted such insurance upon application therefor in writing and upon payment or authorization for deduction of premiums and evidence satisfactory to the Administrator showing such person to be in good health at the time of such application. In any case in which application for life or disability insurance is made prior to January 1, 1950, the Administrator shall not deny, for the purposes of this section or sections 803-805, 806-818 of this title, that the applicant is in good health because of any disability or disabilities, less than total in degree, resulting from or aggravated by such active service. * * *'
38 U.S.C.A. § 802(n) provides, inter alia: 'Upon application by the insured and under such regulations as the Administrator may promulgate, payment of premiums on such insurance may be waived during the continuous total disability of the insured, which continues or has continued for six or more consecutive months, if such disability commenced (1) subsequent to the date of his application for insurance, (2) while the insurance was in force under premium-paying conditions, and (3) prior to the insured's sixtieth birthday: * * *.'
Pursuant to the authority given in 38 U.S.C.A. § 808, it has been provided, Code of Federal Regulations, 1946 Supp., Title 38, Sec. 10.3422, that National Service Life Insurance '* * * may be reinstated by written application of the insured accompanied by evidence of insurability and tender of two monthly premiums, * * *.' Section 10.3423 provides that National Service Life Insurance may be reinstated if application and tender of premiums are made:
'(a) If it be term insurance, within six months after lapse or six months after the date of approval of Public Law 589, 79th Congress, whichever is later, provided the applicant be in as good health on the date of application and tender of premiums as he was on the due date of the premiums as he was on the due date of the premium in default and furnished evidence thereof satisfactory to the Administrator. * * *
'(b) After expiration of the applicable period mentioned in paragraph (a) of this section, provided applicant is in good health (Sec. 10.3401) on the date of application and tender of premiums, and furnished evidence thereof satisfactory to the Administrator of Veterans' Affairs.'