Atkinson v. Indiana Nat. Life Ins. Co.

• Decision Date: 02 May 1924
• Docket Number: No. 24044.,24044.
• Citation: 143 N.E. 629,194 Ind. 563
• Parties: ATKINSON v. INDIANA NAT. LIFE INS. CO.
• Court: Indiana Supreme Court

194 Ind. 563

143 N.E. 629

ATKINSON

v.INDIANA NAT. LIFE INS. CO.

No. 24044.

Supreme Court of Indiana.

May 2, 1924.

Appeal from Circuit Court, Warrick County.

Action by Merrill Atkinson, as administrator of the estate of Ernest S. Atkinson, deceased, against the Indiana National Life Insurance Company. From a judgment granting insufficient relief, plaintiff appealed to the Appellate Court, which transferred the case (132 N. E. 263) to the Supreme Court, pursuant to Burns' Rev. St. 1914, § 1394, subd. 1. Reversed, with directions.

George K. Denton, of Evansville, for appellant.

Chas. E. Henderson, of Indianapolis, for appellee.

TRAVIS, J.

Appellant administrator sues the appellee insurance company to recover the amount of the life insurance claimed to be due upon its policy, on account of the death of the insured. Appellee admitted liability to pay the policy for the amount adjudged to be due.

The question for consideration to decide the appeal is the interpretation of that part of the incontestable clause which has to do with the risk of military service assumed by the company in time of war.

The case was submitted to the trial court upon an agreed statement of facts, a narration of which, necessary for the understanding of the case, follows.

Appellee was a duly incorporated life insurance company under and pursuant to the laws of Indiana, for the incorporation of legal reserve stock insurance companies. According to its policy, it insured the life of Ernest S. Atkinson against death on the 20th day of October, 1913, for $1,000, payable to his mother, if living, otherwise to his estate. The insured survived his mother. In September, 1918, the insured was inducted into the military service of the United States, and, after physical examination, and having taken the oath of allegiance, the government sent him to military camp in the state of California for military training to prepare him for active service on the battlefield of Europe in the war then existing between the United States and Germany and Austria Hungary, by virtue of the declaration of Congress April 6, 1917. The United States engaged in actual hostilities in Europe in this war, and was so engaged when the armistice was signed by the opposing warring parties, the 11th day of November, 1918, at which time armed hostilities were suspended and have never since been resumed, but no formal declaration of peace by the United States had been made. After having been inducted into military service and while in the camp the insured, on the 2d day of December, 1918, was granted a leave of absence and furlough upon his application to his superior officer, until midnight of that day, “for the purpose of pursuing his own individual inclination, and not for the purpose of doing, nor was he engaged in doing while on said leave, any military service for his government,” although upon such leave of absence, by the rules of such military service, the insured was subject to be recalled from such leave, and to have the same revoked at any time, and he was subject to military discipline during the time of such leave. After such leave was granted, insured, solely in pursuit of his own individual inclination, started for the Pacific coast on a autocycle, and while on his way, and away from the military camp on said day, he collided with an automobile, and was thereby injured, the result of which was immediate death. At the time of the collision the insured was not performing any military service of any kind for the government of his allegiance, and death resulted wholly and solely from the collision. The insured had paid all premiums as and when they became due, and had performed all of the terms, conditions, and stipulations on his part to be performed, as defined in the insurance policy. The administrator, appellant herein, had furnished to the insurance company proof of death of the insured upon forms furnished by it.

That part of the life insurance policy which related to the risk of military service reads as follows:

“After one year from the date of issue this policy shall become incontestable if the premiums have been duly paid, except in case of self-destruction within two years, whether sane or insane, and except that military or naval service in time of war without a permit from the company, is a risk not assumed under this policy at any time; but the legal reserve hereunder will be due and payable in case of death while in such service.”

Before suit was begun, appellee offered and agreed to pay appellant the legal reserve upon the policy with interest, in the sum of $84.08, which was refused.

Appellant began this suit to recover the full amount insured, to wit, $1,000, no part of which had been paid or tendered by appellee. If appellant is entitled to recover the amount of the face of the policy, the amount so recovered should be $1,000, together with 6 per cent. interest per annum thereon from 60 days after proofs of death, made on the -day of January, 1919. If, on the other hand, appellant is not entitled to recover the face of the policy under its terms and the facts herein agreed upon, the amount to be recovered by appellant is limited to the legal reserve with interest, in the sum of $84.08.

The finding of the trial court, based upon the agreed written statement of facts, was that appellant was entitled to recover the legal reserve on the policy with interest, which amounted to $84.08, the amount agreed upon, if the court found that appellant was not entitled to the face of the policy but only to the legal reserve. The finding was followed by judgment for appellant for $84.08.

Appellant contends that the plain meaning of the military clause is that the insurance company does not assume the risks of or incident to military service. Appellee contends that the limitation intended by the military clause is one of the status of the insured at the time of death, and not...