Gorder v. Lincoln National Life Ins. Co.
| Decision Date | 06 December 1920 |
| Docket Number | 6 |
| Citation | 180 N.W. 514,46 N.D. 192 |
| Court | North Dakota Supreme Court |
Appeal from the district court of Bottineau County, A. G. Burr, J.
Affirmed.
Pierce Tenneson & Cupler, for appellant.
On the question of the proof that the insured came to his death while subjected to the hazard of naval service, it is clear that such is not the case. He was in an inland city, and not subject to any risks not common to civilians with whom he was constantly associated. Myli v. American L. Ins. Co. 175 N.W. 631; Kelly v. Fidelity Mut. L. Ins. Co. 172 N.W 153.
If the terms of the contract be clear, and not fairly susceptible of two constructions, an ambiguity cannot be assumed, and the plain intention of the parties nullified by construction. Hormel & Co. v. American Bonding Co. 128 N.W. 14, 33 L.R.A. (N.S.) 513.
W. H Adams, for respondent.
BIRDZELL J. NUESSLE, BRONSON, and ROBINSON, JJ., concur, GRACE, J., concurring in the result. Mr. Chief Justice CHRISTIANSON, did not participate; Hon. W. L. NUESSLE, Judge of the Fourth Judicial District, sitting in his stead.
This is an action to recover the face amount of a life insurance policy. By stipulation it was tried before the district court of Bottineau county without a jury and a judgment was rendered for the full amount of the policy, interest, and costs, amounting in all to $ 2,179.67. The policy was issued on March 31, 1917, to Arthur Norman Gorder, age twenty-two years. The beneficiary was Jacob L. Gorder, his father, the plaintiff in this action. On June 14, 1918, the insured entered the military service of the United States under the Selective Service Law. He was stationed in various training camps and cantonments prior to his embarkation for overseas duty. At the time of embarkation he was a member of Battery F, 125th Field Artillery, and sailed with this unit on September 24, 1918, on the army transport "Saxon." He is reported to have been transferred on October 7, 1918, to the base hospital at the port of debarkation, Liverpool, England, where he died on October 14, 1918, of pneumonia.
The defense relied upon by the appellant arises under the provision of the policy which was stated under the heading "Conditions as to Residence, Travel and Occupation." The provision reads as follows:
The insured had paid the annual premium stipulated in the policy of $ 48.76 but he had not paid the extra premium which would cover the risk of military service fixed by the actuaries at $ 100 per thousand, or $ 200 per annum on this policy. Nor had he obtained permission from the company as required by the clause above quoted. The trial court found that the death of the insured was not in consequence of his military service.
It is contended that the insured had subjected himself to greater hazard by becoming a member of the military forces and by submitting to conditions of life prevailing in military camps and upon transports, thereby being subjected to contagious diseases prevalent in armies. It is stated that such diseases as typhoid, measles and influenza are more prevalent in the army than in civil life and that even during times of warfare a greater number of soldiers have died from contagious diseases than were killed in actual combat. The appellant argues from this that a death from one of these diseases while in military service is necessarily a death resulting from the service just as much as though it had resulted from a wound from an enemy bullet. Reading the clause in question in the light of such facts, it is contended that it is not ambiguous, and that its purpose is to stipulate against all increase of risk due to military service.
We cannot adopt this construction of the provision for the reason that it is expressly stated therein what the effect of the failure to obtain the permit and pay the extra premium shall be. The provision is in two parts; one part provides for the payment of an added premium to cover all risk incident to military service, and the other stipulates for a limited liability where the insured, without contracting for the added risk, dies "in consequence of such service." The limitation is not to be construed liberally to reduce liability. There is a vast difference between a death in the active military service (Miller v. Illinois Bankers' Life Asso. 138 Ark. 442, 7 A.L.R. 378, 212 S.W. 310; Reid v. American Nat. Assur. Co. 204 Mo.App. 643, 218 S.W. 957; Ruddock v. Detroit L. Ins. Co. 209 Mich. 638, 177 N.W. 242) and a death in consequence of such service. Malone v. State L. Ins. Co. 202 Mo.App. 499, 213 S.W. 877; Kelly v. Fidelity Mut. L. Ins. Co. 169 Wis. 274, 4 A.L.R. 845, 172 N.W. 152; Benham v. American Cent. L. Ins. Co. 140 Ark. 612, 217 S.W. 462; Nutt v. Security L. Ins. Co. 142 Ark. 29, 218 S.W. 675. A further reason why the limitation should only operate to reduce liability in the instances where the death occurred in consequence of military service is that the normal premiums continue to be payable. These premiums are presumably calculated on the basis of average mortality in civil life. To give to this war clause the construction for which the appellant contends would be to discriminate in this respect against all who entered the military service. It is well known that the ravages of influenza-pneumonia resulted in many thousands of deaths among those in civil life, and to hold that the insurance is not applicable where a soldier dies from the same cause would be to exempt for a hazard that would have been insured against had the soldier remained in civil life. With respect to soldiers, therefore, it would place the insurance company upon a better footing than it occupied with respect to civilians generally.
The provision differs materially from the one before this court in the case of Myli v. American L. Ins. Co. 43 N.D. 495, 11 A.L.R. 1097, 175 N.W. 631. In the policy there considered it was stipulated:
"If, within five years from date hereof, the death of the insured shall occur while engaged in military or naval service in time of war without having previously obtained from the company a permit therefor, the company's liability shall be limited to the cash premiums paid hereon for the three years from date of issuance and thereafter to the legal reserve on this policy," etc.
Had that provision stood alone, it would have been extremely doubtful whether the beneficiary could have recovered insurance where the insured had been inducted into the active military or naval service. Malone v. State L. Ins Co. 202 Mo.App. 499, 213 S.W. 877; Miller v. Illinois Bankers' Life Asso. supra; Reid v. American Nat. Assur. Co. 204 Mo.App. 643, 218 S.W. 957; Ruddock v. Detroit L. Ins. Co. 209 Mich. 638, 177 N.W. 242; Nutt v. Security L. Ins. Co. supra. Language could have been employed which would have rendered more clear the intention to make the status of the insured alone the condition upon which the limited liability would attach. But the other provisions of the policy so clearly provided for double indemnity and disability insurance, except for death or injuries resulting from military or naval service, that it was plain status alone was not the condition of the limited liability. Under the facts in that case it was evident that death did not result from the service; also that the insured did not die surrounded by any hazards not common to civilians in equal...
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