Benham v. American Central Life Insurance Company

• Citation: 217 S.W. 462,140 Ark. 612
• Decision Date: 24 November 1919
• Docket Number: 5
• Parties: BENHAM v. AMERICAN CENTRAL LIFE INSURANCE COMPANY
• Court: Supreme Court of Arkansas

217 S.W. 462

140 Ark. 612

BENHAM v. AMERICAN CENTRAL LIFE INSURANCE COMPANY

No. 5

Supreme Court of Arkansas

November 24, 1919

Appeal from Lee Circuit Court; J. M. Jackson, Judge; reversed.

Judgment reversed and cause remanded.

E. D Robertson, Mann & McCulloch and Mann, Bussey & Mann, for appellant.

1. The undisputed facts show that deceased was not "engaged" in the army or naval service at the time of his death in the contemplation of the contract, and under the provisions of the policies the company is liable for the full amount of the policies, and the insured had not reached a flying status in his training for a commission and consequently a permit was not necessary.

Forfeitures are not favored. 133 Ark. 174; 1 Cyc. 245; 65 Ark. 59; 60 A 180; 155 N.W. 860. The contract will be construed most strongly against the insurer. 94 Ark. 417; 80 Id 49; 89 Id. 471.

2. The clause, "death while engaged in the military or naval service in time of war," etc., is a restrictive clause and the construction of it must be strict, and all doubts resolved in favor of the insured. 111 Ark. 167; 48 N.Y. 34; Union Co. v. Hughes, 60 S. W.

The purpose of the contract was to insure against the ordinary hazards of the ordinary life. Insured died from influenza, a nation-wide epidemic, and the war had no effect on the risk, and he did not die in consequence of the war. The contract should have been construed to limit liability only when death occurred while engaged in actual conflict or in consequence of injuries received while in actual conflict. The word "engaged" as used meant that death must occur while in a fight, struggle or battle, etc. 60 S.W. 850; 72 S.W. 1016; L. R. A. (N. S.) 1918 C, p. 130; 48 N.Y. 34.

3. It was error to direct a verdict, and the issue should have been submitted to a jury.

4. The letter written by the actuary to deceased was an estoppel to claim any forfeiture by reason of the death of insured while in the status he was at the time the letter was written.

Woolen, Cox & Welliver, of Indianapolis, and Daggett & Daggett, for appellee.

1. The death of the insured occurred while he was engaged in military service in time of war without the required permit of the insurer, and the company was only liable for the reserve which was tendered.

2. The company is in no way estopped to deny liability for the full amount of the policies and to rely upon the plain meaning of the terms and conditions of the policies.

It is plain that the insured died both "while engaged in military service in time of war" and also "in consequence of such service." The testimony shows he was engaged in the military service in time of war. Act Congress, September 2, 1914, secs. 514, 514u, 514uu, as amended by act October 6, 1917. The words "engaged in" have been often construed. 119 Col. 119; 51 P. 32; 26 Fla. 360; 7 So. Rep. 861; 104 S.W. 415; 207 S.W. 74. The case in 48 N.Y. 44 is an entirely different case from this.

Here the insured enlisted, was enrolled in a branch of the military service, took the oath and subjected himself to military orders, accepted war risk insurance, was given a military funeral and a record filed in the adjutant general's office showing him to be a private first class, aviation section. The language of the contract means and shows a clear intention to except from the policy death occurring from any cause whatsoever while employed in the military service. Cases supra; 68 Kan-539; 75 P. 494.

The undisputed testimony shows that the insured was in the military service within the meaning of the policies at the date of his death and the court properly directed a verdict.

STATEMENT OF FACTS.

Julius Benham, Sr., administrator of the estate of Julius Benham, Jr., deceased, brought this suit against the American Central Life Insurance Company, of Indianapolis, Ind., to recover $ 4,000 on four policies of life insurance.

The company defended on the ground that the insured died while in the military service of the United States in time of war and that this exempted it from liability under the terms of the policy. On December 20, 1916, the American Central Life Insurance Company of Indianapolis, Indiana, issued four policies of life insurance for the sum of $ 1,000 each to Julius Benham, Jr., payable to his estate. Each of said policies was in the common form used by the insurance company and contained a restrictive provision which reads as follows: "After one year from the date hereof, this policy shall be incontestable, except for nonpayment of premiums and except for violation of its conditions as to military or naval service in time of war. * * *

"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."

On February 11, 1918, Julius Benham, Jr., enlisted in the aviation branch of the military service of the United States, at Memphis, Tennessee. Early in June he was on duty at an aviation camp at Dallas, Texas. Subsequently he was sent to Cornell University in the State of New York for special training in the aviation branch of the army and graduated from this course of training on October 5, 1918. He was at once ordered to report to the commanding officer of the concentration camp in Camp Dick, Texas, to await assignment to a flying school for training. En route to Camp Dick, Benham contracted influenza, and upon his arrival at Dallas, Texas, he was transferred to St. Paul's Hospital, where he died on the 26th day of October, 1918. From the date of his enlistment to the date of his death the United States were at war with Germany and Benham was constantly subject to the military authority of the United States. He was buried with military honors at Marianna, Arkansas, where his remains were shipped for interment under a military escort. From the date of the issuance of his policy until his death, Julius Benham, Jr., paid the premiums and complied in all respects with the terms of his policies. Julius Benham, Sr., is the beneficiary under a policy issued to Julius Benham, Jr., under the War Risk Insurance Act of 1917.

It was proved that influenza was prevalent throughout all of the...