140 Ark. 612 | Ark. | 1919
(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.”
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.