74 Ind. App. 507 | Ind. Ct. App. | 1920
The only error assigned in this appeal is that the court erred in its conclusion of law on the special findings of fact.
It appears by, such special findings that appellant on April 28, 1917, insured the life of one John Smith against death in the sum of $142.80, and delivered to
“* * * Death benefits will not be paid in any case where * * death results * * * while engaged in active military service. * * *”
The construction given to the expression “while engaged in active military service” must determine the result of this appeal.
In the case of Redd & Thompson v. American, etc., Ins. Co. (1918), 200 Mo. App. 383, 207 S. W. 74, an application for insurance contained a provision that: “ ‘Active service in the army or navy, in time of war, shall invalidate said contract of insurance, unless a permit for such service shall have been applied for in writing and endorsed upon the policy by the company, * * *’ ” The policy provided that “ ‘In case of death from service in war without permission from the company, the full reserve for this policy at the time of such death only will be paid.’ ” The insured, being registered under the selective service law, was sent by the military authorities to Camp Funston, Fort Riley, Kansas, where he died of pneumonia while in the service aforesaid. No permission had been given the insured to enter military service. The court held, quoting from New Century Dictionary, that active service (military) is “ ‘The performance of duty against an enemy, or operations carried on in his presence,’ ” and then stated that the active service with which it was dealing according to the policy was service in time of war, and that one who has entered the military service in time of war, and is there in course of training in the medical department thousands of miles from the scene of hostilities, cannot be regarded as in active service in the army in time of war.
In Kelly v. Fidelity, etc., Ins. Co. (1919), 169 Wis. 274, 172 N. W. 152, 4 A. L. R. 845, it was held that,
In Myli v. American Life Ins. Co. (1919), (N. D.) 175 N. W. 631, where the insured enlisted in the navy department during the recent war, and had been assigned to the Dunwoodie Institute in Minneapolis for instruction and training, and while so assigned had contracted influenza, from which he died after a brief illness in the city hospital of said city, it was held that, under a provision limiting the liability in case of death of the insured while engaged in military or naval service in time of war without obtaining a permit therefor, such death was not occasioned by any extra hazard incident to military or naval service so as to preclude recovery on the policy. The court in this case said: “It is idle to say that because one’s status is such that he must respond to orders from military or naval authority, he is in military or naval service within such a provision, when in fact there is nothing about his daily activities that suggests the least physical danger that would enhance an insurance risk.”
In the case of Nutt v. Security Life Ins. Co. (1920), (Ark.) 218 S. W. 675, it was held that a policy limiting the liability upon the death of the insured while engaged in military service in time of war, without a permit, did not exempt insurer from liability upon death from influenza of the insured in a base hospital in any army camp of the United States, such provision covering only death proximately caused by war activities. The court quotes from Benham v. American, etc., Ins. Co. (1920), (Ark.) 217 S. W. 462, as follows: “‘Death while engaged in military service in time of war’ means
In harmony with the foregoing authorities, we hold that the finding of facts does not present a case where “the death results * * * while engaged in active military service.” Judgment is affirmed.