Swart v. United States (158 F. Supp. 874, 1958)

BARKSDALE, District Judge.

This action having been tried upon the facts by the court without a jury, the court doth hereby find the facts specially and state separately its conclusions of law thereon, and directs the entry of the appropriate judgment as follows:

Findings of Fact.

Plaintiff, Christine Rosser Swart, is a resident' of Rustburg in the Western District of Virginia. She has instituted this action under the National Service Life Insurance Act of 1940, 38 U.S.C.A. § 801 et seq., and the World War Veterans’ Act of 1924 as amended, 38 U.S. C.A. § 445. While on active duty as an enlisted man in the United States Navy, plaintiff’s son, James Carrington Swart, applied for, and there was issued to him on November 11, 1944, a contract of National Service Life Insurance in the amount of $10,000. Plaintiff’s son designated his mother, plaintiff herein, and his father, beneficiaries, “Share and share alike or to the survivor”. Plaintiff’s husband died in 1953 before the institution of this action, so plaintiff is the sole beneficiary. James Carrington Swart was enlisted as a Flight Cadet in the United States Navy on May 15, 1943, and served therein until his honorable discharge on May 10, 1946. The premiums due under his contract of insurance were deducted from his pay until he was discharged, at which time his premiums were paid until July 10, 1946. While still on active duty, plaintiff was hospitalized in a Navy Hospital in California, and tuberculosis being suspected, he was X-rayed there on February 25, 1946, March 19, 1946, and April 8, 1946. When these films were reviewed by a board of medical officers at the Veterans’ Administration Hospital, Oteen, N. C., on October 23, 1947, they reported that the veteran Swart had an active (tubercular) lesion m April 1946. Nevertheless, the doctors at the Navy Hospital in California, on the basis of these X-rays, concluded that Swart had no active tuberculosis, and very shortly thereafter, May 10, 1946, he was discharged, not for tuberculosis, nor suspected tuberculosis, but strangely enough, for the stated reason that his height was excessive, although no objection had been made to his height during the three years he had served creditably. Upon his discharge, he returned to the home of his family at Rustburg, Virginia, and having been given to understand by the Navy doctors that he had no tuberculosis, upon his application, he was admitted to the University of North Carolina as a veteran. However, after a short while, his- condition began to deteriorate, and he lost weight very rapidly, losing some forty pounds in the course of three months. He did not finish the semester, but returned home. His condition growing worse, he went to Johns Hopkins Hospital, where, on February 10, 1947, it was discovered that he had active tuberculosis in an advanced state. Shortly after his return to his home, he was admitted to the VA Hospital, Oteen, N. C., on April 6, 1947, where it was confirmed that he was suffering from advanced active tuberculosis affecting both lungs, and toxemia resulting from the tuberculosis, evidenced by daily fever and rapid pulse even while resting. On December 20, 1947, Swart left Oteen without leave. While at Oteen, on October 31, 1947, Swart was rated as one hundred percent disabled from May 11, 1946 (the day following his discharge) by reason of “Tuberculosis, Pulmonary, Chronic, Far Advanced, Active”. While at Oteen, Swart was subjected to three operations, and in July, 1947, his parents were called to Oteen because of his serious illness. However, he left Oteen without leave on December 20, 1947, came home, said he was all right and going to McGuire VA at Richmond to recuperate. On January 10, 1948, to the great surprise of his parents, Swart was married, but after two days, on January 12, 1948, he was admitted to the McGuire VA Hospital at Richmond, where he remained for ten months, that is, until October, 1948, when he left McGuire without leave and came home saying that he was all right. After his return home, Swart undertook to work. For about two months he was employed by Richmond Newspapers, Inc., as an advertising salesman. While there, he was regarded as a promising boy, but carefree and irresponsible. He did not remain in this employment long enough to “adjust to the job”, and then “just walked out”. Then, later in the year 1949, strangely enough, he secured employment as a veterinary inspecting cows for the state, although he himself was suffering from advanced, active tuberculosis. However, he was not strong enough for this work, so quit. Also, from time to time he tried to help his father on the farm, and was given a job collecting trash in the village of Rustburg. However, his work was unsatisfactory, and he lost his job. Meanwhile, in the fall of 1949, his wife developed tuberculosis and went for treatment to the Blueridge Sanatorium at Charlottesville. Although he paid her bills for a while, he finally deserted her and she secured a divorce for desertion in 1952. The veteran’s father, a veteran of World War I, contracted tuberculosis after the veteran’s return and died on August 16, 1953. When at home, the veteran never took proper care of himself, and although he drank very little when he first came home, as his condition became worse he began to drink to excess and for several years before his death on June 3, 1954, he drank excessively and on a number of occasions he would get on sprees and no one knew where he was. From time to time the veteran communicated with the Veterans' Administration, but nearly always he was assisted by his mother or an American Legion representative.

On March 4, 1953, plaintiff filed with the Veterans’ Administration a claim for waiver of insurance premiums by reason