Huntington v. Fraternal Reserve Ass'n of Oshkosh

• Decision Date: 08 March 1921
• Citation: 181 N.W. 819,173 Wis. 582
• Parties: HUNTINGTON v. FRATERNAL RESERVE ASS'N OF OSHKOSH.
• Court: Wisconsin Supreme Court

173 Wis. 582

181 N.W. 819

HUNTINGTON

v.FRATERNAL RESERVE ASS'N OF OSHKOSH.

Supreme Court of Wisconsin.

March 8, 1921.

Appeal from Circuit Court, Shawano County; E. V. Werner, Judge.

Action by Anna Huntington against the Fraternal Reserve Association of Oshkosh. From judgment for defendant plaintiff appeals. Affirmed.A. M. Andrews, of Shawano, for appellant.

E. R. Hicks, of Oshkosh, for respondent.

OWEN, J.

The insurance certificate was issued on the 6th day of April, 1915. By its terms, the certificate, and the articles and by-laws of the defendant, constituted the insurance contract. The certificate provided that--

“If the insured, after one year of continuous insurance, shall engage in any of the following occupations, viz.: Railway switchman * * * soldier in regular army in time of war * * * and any claim accrues while insured is so occupied, whether resulting from such changed occupation or not, directly or indirectly, there shall be paid forty per cent. only of said claim, which shall be in full satisfaction thereof, in consideration of such extrahazardous risk having been carried for the premium named in this certificate. If the insured, while engaged in any of the foregoing classified hazardous occupations, prefers to keep his certificate in force for the full amount, he may do so, by notifying the Supreme Secretary in writing, and paying, while so occupied, such additional amount with each premium as required to cover the extra hazard, according to the foregoing classification.”

The by-laws contain the following provisions:

“Persons engaged in the following occupations shall not be admitted to membership; and any member holding a benefit certificate and engaging in any of the said occupations shall by so doing render his or her certificate null and void, except as modified by by-laws peculiarly applicable to specific classes of certificates. Such prohibited occupations shall be as follows: Railway freight brakeman * * * soldier in regular army in time of war, except a member who engages in service in the United States army or navy in time of war may at his option maintain his certificate in force for the full amount of the benefit payable, by paying for the ‘war risk’ at the additional rate of $3.00 per month, or $35.00 per year per $1,000 of insurance, which payment shall be made in advance, in addition to and at the time of payment of the regular premium payable on said certificate and shall continue throughout said service; if no such option be exercised by the member, or if the member shall fail to pay such additional war risk, the liability of this association for death or disability occurring during said period, whether resulting from said service, or not, directly or indirectly, shall be limited to 40% of the amount otherwise payable under this certificate; and said service may begin at any time after said member procures the certificate in any class.”

The insured, Harry Huntington, joined the Wisconsin National Guard in June, 1917, and thereafter, under army regulations, became a member of the army of the United States at the time the United States was engaged in war with Germany and came under federal control pursuant to law, and remained in such service in the United States army until his death. During the time of said army service the insured paid no additional war risk on his said certificate but continued to pay the regular premium payable thereon. The insured died at Base Hospital, Camp Merritt, New Jersey July 9, 1918, while a member of the army aforesaid. It is conceded that his death was due to natural causes, and was not the result of extra war hazard.

Prior to the commencement of this action the defendant company tendered to the plaintiff the sum of $400 in full settlement of the claim, which tender was, after the commencement of this action, brought into and deposited in court for the benefit of plaintiff. The question here presented is whether said $400 is the extent of defendant's liability under the insurance certificate. This depends upon the proper construction of the provisions found in the certificate and by-laws of the association relating to the army service of the insured.

Appellant claims that the term “regular army,” as found in the provisions referred to, means the permanent military establishment of the United States, which is maintained both in time of peace and war, or the army known in common parlance as the “standing army of the United States.” The United States statutes define “regular army” as “the permanent military establishment which is maintained both in peace and war according to law.” 4 U. S. Comp. St. 1916, § 1716; 30 U. S. St. at Large, c. 187, p. 361, § 3. The act of Congress passed June 3, 1916, entitled “An act for making further and more effectual provision for the national defense,...