The opinion of the court was delivered by: WATSON
This is an action to recover the proceeds of a life insurance policy issued to Harold Herman Betterly, now deceased, under the National Service Life Insurance Act of 1940, as amended.
Plaintiff, Maude Betterly, was the mother of the insured and designated principal beneficiary on the policy. The case was first tried as a jury trial, and the jury returned a verdict in favor of the Defendant, United States of America. On Plaintiff's motion, the Court granted a new trial. Upon agreement of all counsel, the new trial was had before the Court without a jury.
Counsel have stipulated most of the facts, which the Court includes in the following special findings of fact:
1. On or about May 10, 1944, Harold Herman Betterly, then eighteen years of age, entered into active duty in the United States Navy.
2. On or about May 10, 1944, he applied for life insurance on the Five Year Level Premium Term Plan in the amount of $ 10,000 under the National Service Life Insurance Act of 1940. He named his mother, Maude Betterly, as the principal beneficiary, and his father, Clarence Betterly, as contingent beneficiary, and consented to have monthly deductions of $ 6.40 taken from his service pay for the payment of the monthly premiums. The insurance was granted and became effective June 1, 1944. No policy of insurance was issued to him.
3. In June of 1944, Mrs. Maude Betterly, mother of the insured and the designated principal beneficiary, received a certificate from the Veterans Administration certifying that Harold Herman Betterly, the insured, had applied for insurance, payable upon his death in the amount of $ 10,000.00, effective June 1, 1944. On the face of the certificate it stated: 'Subject to the payment of the premiums this insurance is granted under the authority of the National Service Life Insurance Act of 1940, and subject in all respect to the provisions of such Act, of any amendments, thereto, and all regulations thereunder, now in force or hereafter adopted, all of which, together with the application for this insurance, and the terms and conditions published under authority of the Act, shall constitute the contract.'
On the reverse side, it provided, among other things,
'This certificate is issued as evidence that National Service Life Insurance, in the amount specified, has been granted to the individual named, subject to the provisions of the National Service Life Insurance Act of 1940, and subsequent amendments.'
4. Premiums on this contract of insurance were paid through allotment of service pay for the period from June 1, 1944 to and including June 30, 1946.
5. The insured was discharged from the service on May 23, 1946, and on the same date he remitted to the Veterans Administration a premium payment in the sum of $ 6.40 which was credited against the premium due on July 1, 1946.
6. On June 25, 1947, the insured while working in the excavation for a pipe line, met with an accident. He was immediately taken to the Hazleton State Hospital where he remained confined to bed until June 29, 1947, when he died.
8. Upon receipt of the money order in the sum of $ 6.40, the Veterans Administration Branch Office at Philadelphia first entered it in the suspense column of the original premium record card of Robert A. Betterly, who was the remitter and brother of deceased.
9. The amount of Robert A. Betterly's premium was $ 6.60 and not $ 6.40. The Veterans Administration transferred this payment to the original premium record card of Harold Herman ...