premiums because of circumstances which were beyond his control, the Act clearly provides that the failure to make timely application will not prevent the insurance from continuing in full force and effect and, in this case, it would mean that plaintiff is entitled to recover the proceeds of both policies of insurance.
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 elemental human functions and the Court also is aware of the humanitarian purpose of the statute here involved. However, the Court cannot make findings of law which are unsupported by legal evidence.
The ostensible purpose of the statute is to relieve a veteran of financial burden at a time when his disability precludes gainful employment. It is unlikely that an insured would, when totally and permanently disabled, fail to avail himself of the benefits which were so close at hand. The Court believes that, where an insured is totally disabled and fails to make timely application for waiver of premiums, careful consideration must be given to the reasons, if available, for failure to make such application.
In Horton v. U.S., 5 Cir., 1953, 207 F.2d 91, certiorari denied 346 U.S. 903, 74 S. Ct. 233, 98 L. Ed. 403, the Court stated that in order for an insured to claim a condition of health as a circumstance beyond his control which prevented the timely application for waiver of premiums, it must be shown that the insured was mentally incapable of making such application. We believe this to be the proper view despite our sympathetic view of the evidence and facts in this case.
Nowhere in the instant case has it been shown that the insured was mentally incapable of making application for waiver of premiums and in the absence of such showing, the Court must conclude that the insured failed to make application for reasons unknown to the Court. Any other conclusion would be based upon conjecture and guesswork. Plaintiff's rights cannot rise higher than those of the insured under the Act involved in this case and, therefore, the beneficiary's application for waiver of premiums cannot operate to revive the policies. Gossage v. U.S., 6 Cir., 229 F.2d 166. Linton v. U.S., 5 Cir., 227 F.2d 254.
Conclusions of Law.
1. Stephen Kotch, the insured under National Life Insurance Policies, Nos. FN 550-78-10 and N 856-01-39, failed to make timely application for waiver of premiums on said policies of insurance as provided under 38 U.S.C. § 801 et seq., 38 U.S.C.A. § 801 et seq.
2. The failure of Stephen Kotch to make timely application for waiver of said premiums was not due to circumstances beyond his control as required under Section 802(n) of Title 38 U.S.C., 38 U.S.C.A. § 802(n).
3. The Complaint filed by Plaintiff Mary Kotishion will be dismissed and judgment will be entered in favor of the Defendant, United States of American and against the Plaintiff, Mary Kotishion.
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