Appeal from the District Court of the United States for the Western District of Wisconsin.
Before EVANS, SPARKS, and FITZHENRY, Circuit Judges.
FITZHENRY, Circuit Judge.
This is an appeal from a judgment in favor of appellee, Grace Suwalski, entered in an action brought to recover the commuted value of unpaid installments of a war risk insurance policy. Trial by jury was waived and the facts were stipulated by the parties.
Appellee, Grace Suwalski, is the widow of F. A. Suwalski. They were married on March 29, 1903, and F. A. Suwalski died January 4, 1918. Andrew Suwalski was the father of appellee's deceased husband and Alfred Andrew Suwalski, the insured, who was killed on the field of battle in October, 1918. Appellant is the administrator of the estate of Alfred Andrew Suwalski. All of the members of the Suwalski family, which consisted of Andrew Suwalski and his wife, F. A. Suwalski and his wife, and the insured, lived together in one home at Ripon, Wis.The mother of F. A. and Alfred Andrew died before the insured entered the service, in May, 1918.
On May 31, 1918, there was issued to the soldier a war risk insurance policy for $10,000. The beneficiary named therein was his father, Andrew Suwalski. He attempted to designate the father and sister-in-law, Grace Suwalski, as beneficiaries, but was advised that she was not within the then permitted class of beneficiaries. The soldier wrote a letter to appellee which is the basis of the present claim and reads:
"Spartansburg, S.C. June 11, 1918.
"The first breathing spell I have had since I arrived yesterday P.M. and must say that I am more than pleased with the change. They treat one like a human being and that is much more than I can say for Jefferson Barracks. Wish I was home so that I could tell you about it. I sure was some discouraged down in St. Louis and so was every other fellow but the change is so pronounced that we all feel fine and everything. If you folks want me to write real often you can remember to stick in a postage stamp now and then as you will realize that postage is going to be some item with yours truly but I am sure I will manage to get by. Made arrangements for the allotment but could only get twenty five dollars but I think that is all OK and what you do not use you can put in a Savings Account. It will start in July so they tell me. Now about the Insurance. I wanted it made out to you and pa but they said it had to be made out to a blood relative but Grace I want you and pa to understand that if anything should happen to me I want the 57/50 per month to go to pa & you share and share alike. That is as I want it and you can keep this letter. Should anything happen to either one of you two then I want the whole 57/50 to go to the other one. This is the best I can do. The check will come to you every month for twenty years should anything happen to me. So I don't see how you folks need worry. Well so much for that, and believe me I am glad to get it out of my system. When you write home remember me to the folks and say I sure am happy and satisfied. It is rumored that we will be here at least 72 days so if I get a chance I may run home. So much for this time and next time I will have more to say about work. With love to all.
By the act of Congress the War Risk Insurance Act (section 402, 40 Stat. 409, as amended by Act June 25, 1918, § 21, 40 Stat. 615) was amended on December 24, 1919 (41 Stat. 375, § 13), so as to have retroactive effect to 1917, extending the ...