The opinion of the court was delivered by: LETTS
The plaintiff makes claim for gratuitous insurance in the sum of $ 2,000 under the provisions of the National Serive Life Insurance Act of 1940, 38 U.S.C.A. § 801 et seq. The case has been submitted to the court for decision on a stipulation of facts, the depositions of plaintiff and Francisco P. Monge and written arguments.
The agreed facts are as follows:
1. Salvador M. Moreto served as a member of the Philippine Army from December 8, 1941, until April 9, 1942, when he was declared to be in a beleagured status; thereafter he was classified as being in a missing in action status from April 9, 1942 to April 11, 1943 on which date his death was presumed to have occurred by Army authorities for pay purposes and settlement of accounts.
2. The Veterans Administration determined that death occurred on April 10, 1942, for insurance purposes.
3. At the time of his death Salvador M. Moreto had National Service Life Insurance in the sum of $ 3,000 in force, this contract of insurance having been issued upon his application which was made effective February 1, 1942, under certificate No. N-1 680 132.
4. After his death the Veterans Administration awarded the proceeds of this $ 3,000 insurance contract of National Service Life Insurance to the designated beneficiaries, one of whom was the plaintiff, Basilio T. Moreto, father of the insured, who was designated as beneficiary of a one-third portion and who has been paid insurance benefits at the rate of $ 5.51 per month from April 10, 1942.
5. The plaintiff thereafter filed a claim for gratuitous insurance with the Veterans Administration on September 16, 1946, in the sum of $ 2,000 as the alleged surviving dependent parent of said Salvador M. Moreto, under the provisions of Section 602(d)(2) of the National Service Life Insurance Act, 38 U.S.C.A. § 802(d)(2).
6. Automatic insurance in the amount of $ 2,000 was established by the Veterans Administration on the life of Salvador M. Moreto on July 21, 1947. This sum, together with the $ 3,000 aforementioned contract of National Service Life Insurance, aggregated the minimum of $ 5,000 specified in Section 602(d)(2) of the Act 38 U.S.C.A. § 802(d)(2).
7. The Veterans Administration considered the plaintiff's claim for gratuitous insurance and finally rejected it on appeal in a decision dated April 8, 1949, upon the ground that the plaintiff's income on the date of the insured's death was sufficient for his reasonable support and maintenance; that he was not dependent on his son, Salvador M. Moreto, within the meaning of the law; and that dependency had not been established as of the date of his son's death.
8. The Veterans Administration notified the plaintiff by letter dated April 8, 1949, that his claim for insurance had been finally denied.
9. Thereafter, on August 7, 1951, the plaintiff brought this suit against the United States for the purpose of recovering gratuitous insurance in the sum of $ 2,000 on the theory that he was a dependent parent within the meaning of the statute and entitled to gratuitous insurance.
It is further stipulated that the only question presented for decision is whether the plaintiff was a dependent father on April 10, 1942, the date of his son's death.
Gratuitous insurance is payable under the provisions of the National Service Life Insurance Act, as amended, to a limited class of beneficiaries consisting of widow or widower, child or children, dependent mother or father of the insured, and in the order named. 38 U.S.C.A. § 802(d)(2). As the deceased veteran was not survived by a widow or child, the plaintiff is the only person within the restricted class of beneficiaries eligible to receive gratuitous insurance benefits and his right to collect the proceeds is contingent upon a showing that he was dependent upon his son on April 10, 1942, the date of the veteran's death. This is the only issue in the case, as the veteran met his death while serving with the armed forces in the Philippines at a time when he only had National Service Life Insurance which he had applied for in the amount of $ 3,000 in force and $ 2,000 gratuitous insurance was established by the Veterans Administration under the statute, this being the difference between the contract insurance in force and the amount of gratuitous insurance authorized by the statute.
Under the statute, dependency must be established as of the date of the veteran's death, Section 802(d)(5) of Title 38 U.S.C.A., ...