ALLEN, Circuit Judge.
This appeal attacks the granting of a motion for new trial in an action upon a National Service Life Insurance policy issued to James H. Tanner, effective March 1, 1943, in which Tanner, the veteran, named his mother as principal beneficiary. Tanner subsequently was married to Patsy Ruth Tanner (now Patsy Ruth Magee). He was killed in action on September 3, 1950.
On June 24, 1946, subsequent to his marriage, an application for change of beneficiary signed by Tanner and duly executed was forwarded to the Veterans' Administration, requesting a change of beneficiary from the veteran's mother to his wife. The Veterans' Administration acknowledged receipt of this application.
After the death of Tanner both his mother and his widow made claim for the insurance. The Veterans' Administration decided in favor of the widow and this suit was instituted by the mother.
The case was tried to a jury. The principal issue raised by the mother was that the signature to the application for change of beneficiary, which purported to be that of the veteran, was either a forgery or had been obtained under duress or during mental incompetence. The jury gave judgment for the mother. The wife, who had been joined as party defendant, filed a motion for new trial, which was granted by the District Court upon the ground that "the verdict is against the great weight of the evidence."
The controlling question is whether the order of the District Court granting a new trial constituted a clear abuse of discretion. Washington Times Company v. Bonner, 66 App.D.C. 280, 86 F.2d 836, 848, 110 A.L.R. 393; Kansas City Stockyards Company of Maine v. Anderson, 8 Cir., 199 F.2d 91, 95, 36 A.L. R.2d 1; Spero-Nelson v. Brown, 6 Cir., 175 F.2d 86, 89; United States v. Johnson, 327 U.S. 106, 112-113, 66 S.Ct. 464, 90 L.Ed. 562. It was held in the Spero-Nelson case that where the jury's verdict resolves a factual question the trial court's action in overruling such motion cannot be reviewed by the Court of Appeals unless it involves an abuse of discretion. The granting or refusing of a new trial is a matter resting in the sound discretion of the trial judge and his action thereon is not reviewable upon appeal save in the most exceptional circumstances. Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 122 F.2d 350, 352-354. We therefore are concerned only as to whether the District Court clearly abused its discretion in granting the new trial. Cf. Hill v. Pennsylvania Greyhound Lines, Inc., 3 Cir., 174 F.2d 171,
As heretofore stated, the paramount issue at the trial was whether the signature on the application for change of beneficiary was genuine or whether it was obtained under duress or circumstances of mental incompetence. The District Court found that there was no proof of any of these points. No expert testimony as to the validity of the signature was given, but the jury had the opportunity of comparing the signature on the application for insurance with the signature on the application for change of beneficiary.
The official records of the Veterans' Administration showing the change of beneficiary were admitted in evidence in accordance with 28 U.S.C. § 1733, which provides that
The change of beneficiary was made on Veterans' Administration Insurance Form 336 for Change of Beneficiary and bore the serial number of the veteran. The signature, "James H. Tanner," in accordance with the regulations adopted by the Veterans' Administration, was in ink and witnessed by Gail M. Jackson, CWO USA Personnel. The records also include a copy of a letter on Veterans' Administration letterhead dated August 5, 1946, addressed to James H. Tanner at Fort Bliss, Texas, and signed by H. L. McCoy, Director of Insurance, and C. A. Zoller, Director Underwriting Service, which acknowledged the receipt of the request for change of beneficiary and stated that the request had been "made of record."
The District Court in a detailed opinion considered that the presence of these documents in the files of the Veterans' Administration was evidence of the fact that the veteran executed the request for change of beneficiary.
The District Court stated:
It also stated:
As declared by the Fourth Circuit in Aetna Casualty & Surety Co. v. Yeatts, supra, 122 F.2d at page 352, Judge Parker writing the opinion:
We conclude that under this record we cannot hold that there is no "tenable ground" for the granting of a new trial. The District Court did not abuse its discretion.
The order of the District Court is affirmed.
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