Benham v. American Central Life Insurance

HART, J., (after stating the facts). The correctness of the holding of the trial court depends upon the construction to be placed upon the following provision which is contained in each policy sued on: “Death while engaged in military or naval service in time of war, or in consequence of such service, shall render the company liable for only the reserve under this policy, unless the company’s permission to engage in such service shall have been obtained and such extra premium or premiums as the company may require shall have been paid.” Counsel for the defendant seek to uphold the judgment upon the authority of Miller v. Illinois Bankers’ Life Association, 212 S. W. 310. There the insured died of pneumonia while he was in the military service of the United States during the war with Germany. The policy contained the following clause: “It is expressly provided that death while in the service in the army or navy of the government in time of war is not a risk covered at any time during the continuance or reinstatement of this policy for any greater sum than the amounts actually paid to the company thereon.” (1-2) This court held that the clause in question exempted the company from liability for the death of the insured. The effect of this was to hold that the words, ‘‘death while in the service in the army or navy of the government in-time of war,” meant death during the period of service in the army and navy of the government in time of war. In other words, the court held that these words referred to the period of time during which the insured was in service in the army. We do not think that case controls here. It is well settled that stipulations of the character under consideration in policies of insurance are always construed strictly against the insurer. The reason is that policies of insurance are issued on printed forms prepared by experts at the instance of the insurer and the insured has no voice in their preparation. The words in the restricted clause now under consideration mean something more than death to the insured during the period of time he was in military service of the United States. The word “engaged” denotes action. It means to take part in. To illustrate, a servant injured while in the operation of a train, means that he must be injured while assisting or taking part in the operation of the train. An officer engaged in the discharge of the duties of his office is one performing the duties of his office. So here the words, ‘ ‘ death while engaged in military service in time of war,” means death while doing, performing, or taking part in some military service in time of war. In other words, it must be death caused by performing some duty in the military service. That is to say, in order to ex-, empt the company from liability, the death must have been caused while the insured was doing something connected with, the military service, in contradistinction to death while in the service dne to causes entirely or wholly unconnected with such service. This construction, we think, would be according to the natural and ordinary meaning of the words. By the use of the word 1 ‘engaged” it must have been intended that some activity in the service should have caused the death in contradistinction to merely a period of time while the insured was in the service. This view is strengthened when we consider the words following. The words, ‘ ‘ or in consequence of such service,” relate to the word death. So that death' in “consequence of such service” means death resulting from some act of the insured connected with the service whether such death occurred during the period of his service or afterwards. (3) It is well known that there is more danger in performing the duties incident to naval or military service than other occupations. Hence after the world’s war commenced, presumbly this restrictive clause was added in anticipation that the insured might join the army or navy, and recognizing that the duties of such a service imposed additional danger to the insured, it was provided that if death ensued while he was engaged in the performance of a military or naval service, that the company would be exempt from liability. The word “engaged” as used in the policy means, an active or physical performance of some act or duty in connection with military service. As above stated, the rule applies that the clause should receive the interpretation most favorable to the plaintiff because the defendant is responsible for the language used. In the case at bar the insured died from influenza and the record shows that this disease was prevalent throughout the United States and that soldiers and civilians alike contracted it and died from it. The death of the insured then was in no sense caused by performing any military service or in consequence of being engaged in military service. It follows that the court erred in directing a verdict for the defendant, and for that error the judgment must he reversed and the cause remanded for a new trial. SMITH, J., dissents; MoCULLOCH, C. J., not participating.