B-140476, MAR. 17, 1960

B-140476, MAR. 17, 1960

TO KANSAS CITY LIFE INSURANCE COMPANY:

FURTHER REFERENCE IS MADE TO OFFICE LETTER OF SEPTEMBER 14, 1959, AND SUBSEQUENT CORRESPONDENCE, RELATIVE TO REFUNDMENT BY YOUR COMPANY OF A CLASS E ALLOTMENT AT $15 A MONTH PAID TO YOU FROM SEPTEMBER 1947, TO FEBRUARY 1954, IN THE TOTAL AMOUNT OF $1,170, WHICH HAS BEEN APPLIED IN PAYMENT OF INSURANCE PREMIUMS ON THE ABOVE-NUMBERED POLICY. SUCH REFUND WAS REQUESTED ON THE BASIS THAT THAT POLICY WAS A NULLITY SINCE NO RECORD OF SERVICE COULD BE FOUND IN THE FILES OF THE UNITED STATES ARMY OR THE UNITED STATES AIR FORCE FOR THE ALLEGED POLICYHOLDER, CHARLES JOHN MCCOURT, SERIAL NO. 1718 6119. IN REPLY DATED NOVEMBER 20, 1959, MR. JOSEPH R. STEWART, GENERAL COUNSEL OF YOUR COMPANY, REASSERTED THE EXISTENCE OF THE ALLEGED POLICYHOLDER AND STATED THAT THE COMPANY IS NOT LEGALLY AUTHORIZED TO CANCEL OR WIPE OUT THE POLICY AND REFUND THE ALLOTMENT PAYMENTS TO THE GOVERNMENT. HE FURTHER STATED THAT THE CASES OF ATLAS LIFE INSURANCE COMPANY V. DAVIS, 232 P.2D 146, AND SPYRA V. GOVERNMENT PERSONNEL MUTUAL LIFE INSURANCE COMPANY, 236 S.W. 2D 218, ARE LEGAL AUTHORITY FOR THE POSITION TAKEN BY YOUR COMPANY IN THE MATTER AND THAT THE ACTION TO BE TAKEN WITH RESPECT TO THE ALLOTMENT PAYMENTS IS A MATTER FOR SETTLEMENT BETWEEN THE GOVERNMENT AND THE INSURED.

IT APPEARS THAT ON AUGUST 4, 1947, ALLOTMENT OF PAY NOTIFICATION FORM 141 FOR CLASS E ALLOTMENT AT $15 A MONTH, PAYABLE TO KANSAS CITY LIFE INSURANCE COMPANY, 407 AMERICAN SECURITY BUILDING, WASHINGTON 5, D.C., WAS SUBMITTED TO THE APPROPRIATE OFFICE OF THE UNITED STATES ARMY FINANCE DEPARTMENT, BEARING THE SIGNATURE "CHARLES JOHN MCCOURT," AS ALLOTTER. THE AUTHORIZATION SHOWS THE ALLOTTOR'S RANK AS PRIVATE FIRST CLASS, SERIAL NO. 1718 6119, AND HIS ORGANIZATION AS 467TH AAFBU, HAMILTON FIELD, CALIFORNIA. YOU HAVE FURNISHED A COPY OF AN APPLICATION FOR INSURANCE IN THE KANSAS CITY LIFE INSURANCE COMPANY WHICH WAS EXECUTED ON AUGUST 5, 1947, ALSO BEARING THE SIGNATURE "CHARLES JOHN MCCOURT.' THIS INCOMPLETE APPLICATION STATES THAT THE APPLICANT WAS BORN IN MANHATTAN COUNTY, NEW YORK, ON SEPTEMBER 27, 1928, THE SON OF WILLIAM J. MCCOURT. ON THE BASIS OF THIS APPLICATION, INSURANCE POLICY NO. 1118291, WAS ISSUED ON OCTOBER 13, 1947, AS A TWENTY PAY-THIRTY YEAR ENDOWMENT FOR A FACE AMOUNT OF $5,000.

YOU HAVE REPORTED THAT NO COMMUNICATION HAS BEEN RECEIVED FROM THE INSURED BY THE COMPANY SINCE THE POLICY WAS ISSUED AND THAT CORRESPONDENCE ADDRESSED TO HIM BY THE COMPANY AT 1173 CLAY STREET, BRONX 17, NEW YORK, THE ADDRESS SHOWN ON THE INSURANCE APPLICATION, HAS NOT BEEN RETURNED BY THE POST OFFICE. HOWEVER, A DEMAND LETTER DIRECTED BY THIS OFFICE TO CHARLES JOHN MCCOURT AT THE ABOVE ADDRESS ON MARCH 27, 1957, WAS RETURNED MARKED "NO SUCH NUMBER," AND ALL ATTEMPTS TO LOCATE SUCH A PERSON THROUGH OTHER INVESTIGATIVE AGENCIES HAVE BEEN UNSUCCESSFUL. WHEN THIS MATTER WAS FIRST REFERRED TO THIS OFFICE UNDER DATE OF OCTOBER 19, 1955, BY THE DEPARTMENT OF THE AIR FORCE, IT WAS REPORTED "COLLECTION LETTER RETURNED UNCLAIMED.' THE DEPARTMENT OF THE AIR FORCE HAS REPORTED THAT THE SERVICE NUMBER SHOWN ON THE ALLOTMENT AUTHORIZATION IS ASSIGNED TO ONE WILLIAM B. BAUMAN.

AFTER FURTHER EXTENSIVE SEARCH, THE AIR FORCE ACCOUNTING AND FINANCE CENTER HAS REPORTED THAT NEITHER THE DEPARTMENT OF THE AIR FORCE NOT THE DEPARTMENT OF THE ARMY HAS BEEN ABLE TO LOCATE ANY RECORD OF SERVICE OF A "CHARLES JOHN MCCOURT," EXCEPT A "CHARLES J. MCCOURT," SERIAL NO. RA 16 229 934, WHO WAS BORN ON MARCH 15, 1928, AT BURLINGTON, WISCONSIN, AND WHOSE FATHER IS CHARLES MCCOURT. PAYROLL RECORDS FOR THE 467TH AAFBU, HAMILTON FIELD, CALIFORNIA, AUGUST THROUGH SEPTEMBER 1947 ACCOUNTS OF MAJOR R. E. POWELL, HAVE BEEN EXAMINED AND NO RECORD PERTAINING TO CHARLES JOHN MCCOURT, NO. 1718 6119, HAS BEEN FOUND.

RECENT INQUIRIES DIRECTED TO THE NEW YORK STATE DIVISION OF VITAL STATISTICS AT ALBANY, NEW YORK, AND THE BUREAU OF RECORDS AND STATISTICS OF THE FIVE BOROUGHS OF NEW YORK CITY RESULTED IN NEGATIVE REPORTS. NONE OF THE OFFICES LOCATED THE RECORD OF BIRTH OF A CHARLES JOHN MCCOURT DURING THE YEARS 1927, 1928 OR 1929.

THE ONLY CONCLUSION TO BE DRAWN FROM THE FOREGOING RECORD IS THAT THE "CHARLES JOHN MCCOURT" INSURED BY YOUR COMPANY AND FOR WHOM AUTHORIZATION FOR ALLOTMENT OF INSURANCE PREMIUMS FROM SERVICE PAY WAS EXECUTED AND SUBMITTED TO THE UNITED STATES ARMY, NEVER SERVED IN EITHER THE UNITED STATES ARMY OR UNITED STATES AIR FORCE. ALSO, AND WITHOUT REGARD WHETHER THE APPLICANT SIGNED A FICTITIOUS NAME, IT SEEMS CLEAR THAT HE MADE MATERIAL MISSTATEMENTS OF FACT IN ANSWER TO QUESTIONS 6, 7, 9, 18, 23 AND PROBABLY 25 ON THE APPLICATION, WITH RESPECT TO HIS ARMY SERVICE, PLACE OF BIRTH, PAYMENT OF PREMIUMS FROM ARMY ALLOTMENTS AND NATIONAL SERVICE LIFE INSURANCE. IF, AS APPEARS PROBABLE, HE SIGNED A FICTITIOUS NAME, HIS STATEMENT THAT WILLIAM J. MCCOURT IS HIS FATHER ALSO APPEARS TO BE FALSE. AS TO THE RIGHTS OF AN INSURER IN SUCH CIRCUMSTANCES, SEE 45 C.J.S., INSURANCE, SECTIONS 593, 599, 606 AND 607.

IN BOTH THE CASES CITED IN MR. STEWART'S LETTER OF NOVEMBER 20, 1959, AS AUTHORITY FOR THE VIEW THAT THERE ARE NO LEGAL GROUNDS TO CANCEL THE POLICY, THERE WAS NO ISSUE AS TO THE EXISTENCE OF THE INSURED AT THE TIME THE POLICY WAS ISSUED AND IT WAS CLEAR THAT HE WAS A MEMBER OF THE ARMED FORCES AT THAT TIME. THIS ISSUE IS THE VERY ESSENCE OF THE GOVERNMENT'S REQUEST FOR REFUND OF THE ALLOTMENTS ERRONEOUSLY PAID IN THIS CASE. MERE MATTER OF THE GOVERNMENT'S FAILURE TO DEDUCT ALLOTMENTS FROM THE PAY OF AN INSURED SERVICE MEMBER IS PRESENT. THE GOVERNMENT COULD NOT DEDUCT THE ALLOTMENTS FROM THE SERVICE PAY OF THE INSURED BECAUSE HE NEVER SERVED IN THE ARMY OR AIR FORCE.

IT IS WELL SETTLED THAT AN INSURANCE CONTRACT WRITTEN UPON AN OBJECT WHICH HAS NO EXISTENCE IS VOID. PAYMENTS OF INSURANCE PREMIUMS MADE ON INSURANCE CONTRACTS WHICH ARE VOID AB INITIO OR AS TO WHICH NO RISK ATTACHES MAY BE RECOVERED. 29 AM.JUR., INSURANCE, SECTIONS 453, 455, 460; 44 C.J.S., INSURANCE, SECTION 407A; 15APPLEMAN ON INSURANCE LAW AND PRACTICE, SECTIONS 8358, 8359, 8363; 3 CORBIN ON CONTRACTS, SECTION 600. EVEN IF THE PAYMENTS HEREIN BE CONSIDERED AS INVOLVING MERELY A MISTAKE AND NOT FRAUD, A PERSON WHO HAS BEEN UNJUSTLY ENRICHED AT THE EXPENSE OF ANOTHER IS REQUIRED TO MAKE RESTITUTION. SECTION 1, RESTATEMENT OF THE LAW OF RESTITUTION. SEE ALSO, UNITED STATES, V. NORTHWESTERN NATIONAL BANK AND TRUST CO. OF MINNEAPOLIS, 35 F.SUPP. 484, 486; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190, AND UNITED STATES V. BENTLEY, 107 F.2D 382, 384.

REQUEST IS AGAIN MADE FOR REPAYMENT TO THE GOVERNMENT OF THE FULL AMOUNT OF THE ERRONEOUS ALLOTMENTS PAID TO YOUR COMPANY. PAYMENT COULD BE MADE BY CHECK OR MONEY ORDER PAYABLE TO THE ,U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO THE FOLLOWING ADDRESS:

U.S. GENERAL ACCOUNTING OFFICE

POST OFFICE BOX 2610 ..END :