180 N.W. 514 | N.D. | 1920
This is an action to recover the face amount of a life insurance policy. By stipulation it was tried before the district court ■of Bottineau county without a jury and a judgment was rendered for the full amount of the policy, interest, and costs, amounting in all to $2,179.67. The policy was issued on March 31, 1917, to Arthur Norman Gorder, age twenty-two years. The beneficiary was Jacob L. Gorder,
The defense relied upon by the appellant arises under the provision of the policy which was stated under the heading- “Conditions as to Residence, Travel and Occupation.” The provision reads as follows:
“This policy is free from restrictions as to residence,' travel and occupation after one year from date of issue, except military or naval service in time of war, for which permission must be obtained from the company and an extra premium, at the established rate, shall be paid. In case of death of the insured in consequence of such service and without the company’s permit, the liability of the company hereunder shall be for an amount not greater than the legal reserve on this policy.”
The insured had paid the annual premium stipulated in the policy of $48.76 but he had not paid the extra premium which would cover the risk of military service fixed by the actuaries at $100 per thousand, or $200 per annum on this policy. Nor had he obtained permission from the company as required by the clause above quoted. The trial court found that the death of the insured was not in consequence of his military service.
It is contended that the insured had subjected himself to greater hazard by becoming a member of the military forces and by submitting to conditions of life prevailing in military camps and upon transports, thereby being subjected to contagious diseases prevalent in armies. It is stated that such diseases as typhoid, measles and influenza are more prevalent in the army than in civil life and that even during times of warfare a greater number of soldiers have died from contagious diseases than were killed in actual combat. The appellant argues from this that a death from one of these diseases while in military service is necessarily a death resulting from the service just as
We cannot adopt this construction of the provision for the reason that it is expressly stated therein what the effect of the failure to obtain the permit and pay the extra premium shall be. The provision is in two parts; one part provides for the payment of'an added premium to cover all risk incident to military service, and the other stipulates for a limited liability where the insured, without contracting for the added risk, dies “in consequence of such service.” The limb tation is not to be construed liberally to reduce liability. There is a vast difference between a death in the active military service (Miller v. Illinois Bankers’ Life Asso. 138 Ark. 442, 7 A.L.R. 378, 212 S. W. 310; Reid v. American Nat. Assur. Co. 204 Mo. App. 643, 218 S. W. 957; Ruddock v. Detroit L. Ins. Co. 209 Mich. 638, 177 N. W. 242) and a death in consequence of such service. Malone v. State L. Ins. Co. 202 Mo. App. 499, 213 S. W. 877; Kelly v. Fidelity Mut. L. Ins. Co, 169 Wis. 274, 4 A.L.R. 845, 172 N. W. 152; Benham v. American Cent. L. Ins. Co. 140 Ark. 612, 217 S. W. 462; Nutt v. Security L. Ins. Co. 142 Ark. 29, 218 S. W. 675. A further reason why the limitation should only operate to reduce liability in the instances where the death occurred in consequence of military service is that the normal premiums continue to be payable. These premiums are presumably calculated on the basis of average mortality in civil life. To give to this war clause the construction for which the appellant contends would he to discriminate in this respect against all who entered the military service. It is well known that the ravages of influenza-pneumonia resulted in many thousands of deaths among those in civil life, and to hold that the insurance is not applicable where a soldier dies from the same cause would be to exempt for a hazard that would have been insured against had the soldier remained in civil life. With respect to soldiers, therefore, it would place the insurance company upon a better footing than it occupied with respect to civilians generally.
The provision differs materially from the one before this court in the ease of Myli v. American L. Ins. Co. 43 N. D. 495, 11 A.L.R. 1097, 175 N. W. 631. In the policy there considered it was stipulated:
Had that provision stood alone, it would have been extremely doubtful whether the beneficiary could have recovered insurance where the insured had been inducted into the active military or naval service. Malone v. State L. Ins. Co. 202 Mo. App. 499, 213 S. W. 877; Miller v. Illinois Bankers’ Life Asso. supra; Reid v. American Nat. Assur. Co. 204 Mo. App. 643, 218 S. W. 957; Ruddock v. Detroit L. Ins. Co. 209 Mich. 638, 177 N. W. 242; Nutt v. Security L. Ins. Co. supra. Language could have been employed which would have rendered more clear the intention to make the status of the insured alone the condition upon which the limited liability would attach. But the other provisions of the policy so clearly provided for double indemnity and disability insurance, except for death or injuries resulthu/ from military or naval service, that it was plain status alone was not the condition of the limited liability. Under the facts in that case it was evident that death did not result from the service; also that the insured did not die surrounded by any hazards not common to civilians in equal degree. So, adopting the most favorable construction contended for by the beneficiary (making the character of the service the test), the beneficiary was clearly entitled to recover. He, of course, would have been equally entitled to recover had he contended that it was not shown that death in fact resulted from the service.
In the instant case, death occurred w'hile the insured was in the active military service and is attributable to a cause which resulted in many deaths both in civilian and army life. It has been held that a death from such cause cannot be said to have been a death resulting from military service. The supreme court of Arkansas, in the case of Benham v. American Cent. L. Ins. Co. 140 Ark. 612, 217 S. W. 463, said:
“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.*197 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.”
We do not hold that a death front influenza may not, under certain circumstances, be shown to have been in consequence of military service within a war clause such as the one in question. See 18 Mich. L. 'Rev. 686. We are satisfied, however, that the company has not shown the death in the instant ease to have been in consequence of such service.
It is elementary that the burden of establishing the facts which relieve an insurance company from liability for the face of the policy rests upon the defendant. 25 Cyc. 925-930; Malone v. State L. Ins. Co. supra. It is frequently held under clauses somewhat analogous, such as those limiting liability where the death of the- insured is caused by the use of intoxicating drink or occurs in consequence of the violation of the criminal law, that the burden is upon the company to establish the fact that the death was the proximate result of the cause and thus to bring the case within the limitation. Cluff v. Mutual Ben. L. Ins. Co. 13 Allen, 308, and a case arising out of the same facts. Bradley v. Mutual Ben. L. Ins. Co. 45 N. Y. 422, 6 Am. Rep. 115; Mutual L. Ins. Co. v. Stibbe, 46 Md. 302; Kerr v. Minnesota Mut. Ben. Asso. 39 Minn. 174, 12 Am. St. Rep. 631, 39 N. W. 312. See also Fellers v. Modern Woodmen, 182 Iowa, 99, 165 N. W. 584.
We have no evidence bearing upon the sanitary condition of the camps in which the insured had been stationed prior to his death, nor with respect to the army transport “Saxon,” upon which he sailed. Sanitary conditions varied greatly upon different transports. See The Military Surgeon, October, 1919, p. 399. If any presumption would arise regarding the sanitary conditions surrounding him prior to embarkation, it would be that they were good; for it is not to be presumed that the War Department would designate for overseas duty units that were in poor physical condition or that were likely to become incapacitated prior to participation at the front. Neither is there any evidence of the extent of the prevalence of influenza or pneumonia in the unit to which the insured was attached. Dr. Alyen of Fargo, who was in the medical corps of the United States Army
The outstanding fact in this case is that the hazard to the lives of both the military and civil population was increased several fold by the prevalence of the pandemic of influenza-pneumonia. Statistical data thus far compiled show wide variation of mortality in different sections of the country and in different army camps. Both soldiers and civilians suffered from a common disease, whereas the high death rates due to diseases in the armies assembled in former wars were occasioned by diseases more peculiar to military life. Diseases such as typhoid, before the employment of modern preventive methods, would rage in the army because of the peculiar facilities for acquiring it, whereas it would continue to affect only the average number in civil life. Now it is more rare in the army than in civil life, due to efficient preventive measures.
However the policy in question might be construed in reference to diseases that are more peculiarly prevalent in army camps than in civil life, so that a death from suoh a disease might be regarded as a death in consequence of such service, we are of the opinion that on the record in this case we cannot say that the death of the insured was in consequence of such service. It is our opinion, further, that under the language of the provision in question each individual case is to be determined upon its own facts. For the foregoing reasons the judgment appealed from is affirmed.