The opinion of the court was delivered by: WATSON
This action arises under the Act of October 8, 1940, C. 757, Title VI, Part I, Section 618, 54 Stat. 1014, as amended; Title 38 U.S.C. § 801 et seq., 38 U.S.C.A. § 801 et seq., Mary Kotishion, the plaintiff, seeks to recover, from defendant, the proceeds of two National Service Life Insurance policies which were issued upon the life of her son, Stephen Kotch, during his period of service with the armed forces of the United States. Stephen Kotch, who died in 1951, had named his mother, the plaintiff, as principal beneficiary in both policies, but the United States refused to pay the proceeds of the policies to plaintiff on the grounds that the policies had lapsed during the lifetime of the insured and that application for waiver of premiums had not been timely made. Plaintiff now seeks relief from this finding of the Veterans Administration.
Counsel for plaintiff and for defendant have stipulated and agreed that the record of the proceedings before the Insurance Hearing Board of the Veterans Administration in Wilkes-Barre, Pennsylvania, on May 20, 1952, should be submitted to the Court in lieu of direct testimony as to any factual issue in this case. Accordingly, this Court will confine its findings of fact to those adduced before that board and to facts admitted in the pleadings.
1. On or about December 30, 1942, Stephen Kotch entered the active service of the armed forces of the United States.
2. On January 8, 1943, he was granted a Policy of National Service Life Insurance No. FN 550-78-10 in the sum of $ 5,000. On February 19, 1943, he was granted an additional policy of National Service Life Insurance No. N 856-01-39 in the sum of $ 5,000.
3. In each of said Policies, Mary Kotishion, the mother of Stephen Kotch, was named as principal beneficiary and his father, George Kotishion, was named as contingent beneficiary.
4. Stephen Kotch paid premiums on Policy No. FN 550-78-10 up to and including February 7, 1949, and paid premiums on Policy No. N 856-01-39 up to and including February 18, 1949.
5. While said Policies were in full force and effect, Stephen Kotch became totally and permanently disabled, for insurance purposes, as a result of acute rheumatoid arthritis.
6. As a result of said illness, Stephen Kotch died on September 12, 1951, in the Veterans Administration Hospital in Wilkes-Barre, Pennsylvania.
7. Application for waiver of premiums on the above-mentioned policies was made on Va Form 9-357C and filed on June 9, 1951.
The decedent, Stephen Kotch, entered the service of the armed forces of the United States in 1942 and, within two months of his entry into service, he was granted two policies of National Service Life Insurance in the total sum of $ 10,000. His mother, Mary Kotishion, was named as principal beneficiary. After his discharge from the armed forces, Kotch continued his insurance and he paid the premiums on one of the policies up to and including February 7, 1949 and up to and including February 18, 1949 on the other. The Veterans Administration found that he had become totally and permanently disabled for insurance purposes as of January 10, 1949 and that he was so disabled up to the time of his death on September 12, 1951. Application for waiver of premiums was made on June 9, 1951, approximately two and one-half years after the insurance had lapsed and approximately three months before his death. The application was rejected on the ground that it had not been timely made. The plaintiff now seeks relief in this Court.
Counsel have stipulated and agreed that certain records and documents of the United States government may be considered as evidence without the supporting testimony of the custodian of said records. Included among these records are several clinical reports of various Veterans Administration hospitals in which decedent had been a patient. It is made manifestly clear from these records that the decedent had undergone great pain and suffering as a result of his illness and that his physical mobility was greatly reduced. There is ample testimony in the record of the hearing before the Veterans Administration Board to demonstrate to the Court that the decedent had required almost constant care and treatment and that he was unable to perform, unaided, even the most ...