Johnson v. Mutual Life Ins. Co. of N.Y.

• Citation: 115 S.E. 14,154 Ga. 653
• Decision Date: 15 December 1922
• Docket Number: 3173.
• Parties: JOHNSON v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Supreme Court of Georgia

115 S.E. 14

154 Ga. 653

JOHNSON v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 3173.

Supreme Court of Georgia

December 15, 1922

Syllabus by the Court.

If a policy of insurance is so drawn as to require interpretation and is fairly susceptible of two different constructions, the one will be adopted most favorable to the insured.

Policies of insurance will be liberally construed in favor of the object to be accomplished, and conditions and provisions therein will be strictly construed against the insurer, as they are issued upon printed forms, prepared by experts at the insurer's instance, in the preparation of which the insured has no voice.

Provisions in policies of insurance, that the insurer does not assume risk of death which shall occur while the insured is engaged in military service, or will not be liable for such death have been held to exempt the insurer from liability notwithstanding the fact that death did not result from any hazard peculiar to such service, the status of the insured and not the cause of his death being the ground of such exemption.

Under a policy in which the insurer agrees to pay double indemnity in case of the death of the insured resulting from bodily injury effected solely through external, violent, and accidental means, a provision, "that this double indemnity shall not be payable in the event of the insured's death as a result of military or naval service in time of war, * * * nor if such death be caused directly or indirectly, wholly or partly, by * * * war, or any act incident thereto," will not relieve the insurer from liability, when the death of insured did not result from his service in the military in time of war, or where his death was not caused directly or indirectly, wholly or partly, by war, or by some act incident thereto.

Where the insured was killed on June 27, 1919, while in the military service of the United States, and while he was being transported on a troop train from Ft. Oglethorpe, Ga., to San Francisco, Cal., to be embarked at the latter place for Honolulu, to join other military forces of the United States at that place, his death resulting from his being struck by the girder of an overhead bridge over which such troop train was passing, near Granger, Wyo., the death of the insured under these circumstances would not exempt the insurer from the payment of double indemnity, under the above provision of the policy under which his life was insured; especially where it was not shown by the insurer that the death of the insured was the result of his military service, or was caused by war or an act incident thereto, and when it appears that his death was due to a fatality which befalls soldier and civilian alike.

Certiorari from Court of Appeals.

Action by J. S. Johnson against the Mutual Life Insurance Company of New York. A judgment for plaintiff was reversed by the Court of Appeals (28 Ga.App. 330, 110 S.E. 910), and plaintiff brings certiorari. Reversed.

Beck, P.J., dissenting.

King & Johnson, of Covington, for plaintiff.

Bryan & Middlebrooks, of Atlanta, and Frederick L. Allen, of New York City, for defendant.

HINES J.

The policy of insurance, upon which action in this case was brought, provides that upon the receipt of due proof that the death of the insured resulted directly from bodily injury, independently of all other causes, and that such bodily injury was effected solely through external, violent, and accidental means, and that death occurred within 60 days after such bodily injury, the company would pay to the beneficiary double indemnity:

"Provided, however, that this double indemnity shall not be payable in the event of the insured's death as a result of military or naval service in time of war, * * * nor if such death be caused directly or indirectly, wholly or partly, by * * * war, or any act incident thereto, * * * or from police duty in any military, naval or police organization."

The policy was taken out on June 5, 1919. On June 10, 1919, the insured enlisted in the army of the United States; and at the time of his death on June 27, 1919, he was in the military service of the United States. At the time of his death the insured was being transported, with other troops of the United States, on the Union Pacific Railroad, which was then under government control and management, from Ft. Oglethorpe, Ga., to San Francisco, Cal. At the latter point, these soldiers were to be embarked for Honolulu, to join other military forces of the United States at that place. The insured was killed near Granger, Wyo., by being struck on the head by the girder of an overhead bridge, over which the troop train, on which he was being transported, was passing. At the time he was struck and killed, the insured was standing upon the step, or looking out of the window, of one of the cars of said troop train. The trial judge, to whom the case was submitted, by agreement, upon the facts stated in the petition and answer, rendered judgment for the plaintiff. This judgment was reversed by the Court of Appeals. Mutual Life Ins. Co. v. Johnson, 28 Ga.App. 330, 110 S.E. 910. The case is in this court upon certiorari to review the judgment of the Court of Appeals. The Court of Appeals held that the above provision of this policy exempted the insurer from liability for the payment of the double indemnity therein assumed by it. The correctness of this decision depends upon the proper construction of the stipulation in the policy:

"That this double indemnity shall not be payable in the event of the insured's death as a result of military or naval service in time of war, * * * nor if such death be caused directly or indirectly, wholly or partly, by * * * war, or any act incident thereto."

If a policy of insurance is so drawn as to require interpretation, and is fairly susceptible of two different constructions, the one will be adopted most favorable to the insured. Thompson v. Insurance Co., 136 U.S. 287, 10 S.Ct. 1019, 34 L.Ed. 408; Mass. Ben. L. Asso. v. Robinson, 104 Ga. 256, 30 S.E. 918, 42 L.R.A. 261. Policies of insurance will be liberally construed in favor of the object to be accomplished, and the conditions and provisions of contracts of insurance will be strictly construed against the insurer who prepares such contracts. Arnold v. Empire Life Ins. Co., 3 Ga.App. 695, 60 S.E. 470; Perkins v. Empire Life Ins. Co., 17 Ga.App. 658, 87 S.E. 1094; Wright v. Fuller, 148 Ga. 223, 226, 96 S.E. 433; Ætna Ins. Co. v. Johnson, 127 Ga. 491, 493, 56 S.E. 643, 9 L.R.A. (N. S.) 667, 9 Ann.Cas. 461. This is so because such policies are issued upon printed forms, prepared by experts at insurer's instance, and the insured has no voice in their preparation. Benham v. Am. Cent. Life Ins. Co., 140 Ark. 612, 217 S.W. 462.

Provisions in policies of life insurance, that the insurer does not assume risk of death which shall occur while the insured is engaged in military service, or will not be liable for such death, have been held to exempt the insurer from liability notwithstanding the fact that death did not result from any hazard peculiar to such service. Coxe v. Employers' Liability Assur. Cor., 2 K. B. 629; Ruddock v. Detroit L. Ins. Co., 209 Mich. 638, 177 N.W. 242; Olson v. Grand Lodge (N. D.) 184 N.W. 7, 15 A.L.R. 1270; Huntington...