Feick v. Prudential Ins. Co. Of America.

• Decision Date: 09 December 1948
• Docket Number: No. A-11.,A-11.
• Citation: 62 A.2d 485
• Parties: FEICK v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: New Jersey Superior Court

62 A.2d 485

FEICK

v.PRUDENTIAL INS. CO. OF AMERICA.

No. A-11.

Superior Court of New Jersey, Appellate Division, Part A.

Dec. 9, 1948.

Syllabus by the Court

Military service clause provided that a certain benefit should not be payment ‘if death results from any cause while the insured is in the Military or Naval Forces of any country at war.’ Held:

1. The cause of death is immaterial. Liability depends entirely on the status of the insured.

2. A student in the Navy College Program V-12, was a member of the Naval Forces within the meaning of the policy.

Appeal from Second Judicial District Court, Union County; Ervin S. Fulop, Judge.

Action by Walerya (Viola) Feick against the Prudential Insurance Company of America to recover under double indemnity provisions of life policy. Judgment for defendant and the plaintiff appeals.

Judgment affirmed.

Before JACOBS, EASTWOOD and BIGELOW, JJ.

Jacob M. Goldberg, of Newark, for appellant.

Martin B. O'Connor, of Elizabeth (O'Connor & O'Connor and Ralph V. Mancini, all of Elizabeth, of counsel), for appellee.

BIGELOW, Judge.

This appeal depends on the operation of military service clauses in a policy of life insurance. In June, 1943, the defendant, the Prudential Insurance Company, issued its policy on the life of Stanley Hromiko, payable to the plaintiff as beneficiary. The policy provided that the Company would pay double the face amount of the policy in the event of the death of insured by accident, unless death should happen while insured was ‘a member of the Military, Naval or Air Forces of any country at war (declared or undeclared).’ And in another part of the policy was a clause similar to the last: ‘If this policy contains a provision for the benefit in event of death by accidental means, the conditions and exceptions specified in the policy are hereby supplemented and amended to provide that no such benefit shall be payable if death results from any cause while the insured is in the Military or Naval Forces of any country at war.’

The winter after the policy was written, young Hromiko applied for admission to the Navy College Program. He took the examinations, and was accepted, enlisted in the Naval Reserve and was ordered to duty as a V-12 student at Trinity College, Hartford, Connecticut. This was in February, 1944, at a time when insured was 17 years old. The following January 6, a Sunday, while insured was still a V-12 student at Trinity, and while he was on leave, he was involved in an automobile accident on the public highway in Hartford and suffered injuries from which he died two days later. The Insurance Company paid to the plaintiff the face of the policy but refused to pay double that amount, whereupon she brought action to recover the additional sum. Judgment was rendered for the defendant on the ground that the Company was was saved from the additional liability by the Military Service clauses. The plaintiff appeals.

The two military clauses are not repugnant to each other. They are separate bars, so that either clause is sufficient to defeat liability if the facts bring the case within its terms. Hayes v. Home Life Ins. Co., App.D.C. 1948, 168 F.2d 152. The second clause is the more favorable to the Company and we will confine our attention to it.

Most of the cases dealing with such clauses turn on the question whether it is the cause of death or the status of the insured at the time of death which determines liability. In the second clause quoted above, the Company is relieved of double liability ‘if death results from any cause while the insured is in the Military or Naval Forces of any country at war.’ It would be difficult to express more clearly that the cause of death is immaterial to the question of liability. Liability depends entirely on the status of the insured. Jorgenson v. Metropolitan Life Ins. Co., 1947, 136 N.J.L. 148, 55 A.2d 2, where are collected a large number of authorities from other jurisdictions. We add two excellent, recent cases: Coit v. Jefferson Standard Life Ins. Co., Sup.1946, 28 Cal.2d 1, 13, 168 P.2d 163, 168 A.L.R. 673, and Merchants Nat. Bank v. Commonwealth Life Ins. Co., 1947, 249 Ala. 58; 29 So.2d 350. The real problem in the present suit is whether insured, at the time of death, was a member of the Naval Forces within the meaning of the policy.

The circumstance that insured was ‘on leave’ the Sunday of the accident which resulted in his death, seems to us immaterial. We are not informed of the length of the leave. He may have been home for the Christmas holidays, or perhaps he was permitted to leave the campus for the day, or for the week-end. The leave did not change his status. Life & Casualty Ins. Co. v. McLeod, 1943, 70 Ga.App. 181, 27 S.E.2d 871; Bending v. Metropolitan Life Ins. Co., 1944, 74 Ohio App. 182, 58 N.E.2d 71.

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