Nutt v. Security Life Insurance Company

• Decision Date: 26 January 1920
• Docket Number: 142
• Citation: 218 S.W. 675,142 Ark. 29
• Parties: NUTT v. SECURITY LIFE INSURANCE COMPANY
• Court: Arkansas Supreme Court

218 S.W. 675

NUTT v. SECURITY LIFE INSURANCE COMPANY

142 Ark. 29

No. 142

Supreme Court of Arkansas

January 26, 1920

Appeal from Dallas Circuit Court; Turner Butler, Judge; reversed.

Judgment reversed and cause remanded.

T. D Wynne, for appellant.

The only issue involved is the construction of the war clause in the policy sued on.The court based its findings and judgment on the Miller case in 212 S.W. 310, but that case does not control, as the provision of the war clause there is entirely different from this.All limitations in an insurance policy are construed most strongly against the insurer.17 L. R. A (N. S.) 1011.All doubts should be resolved in favor of the insured and against the insurer.25 Cyc. 739;30 Pa. S.Ct 456;172 N.W. 152.Only war risks were contemplated, and not death from ordinary diseases.48 N.Y. 34; 5 Ct. Ct. 182-181;172 N.W. 152;207 S.W. 74.There is no such provision here as in 212 S.W. 310.There was no forfeiture when the assured entered the United States service, and the court erred in holding that the defendant was exempt from liability under the provisions of the war clause.

T. E. Helm, for appellee.

There was no dispute as to the facts, and the Miller case, 212 S.W. 310, is conclusive of this case as to the law.71 Ark. 295;52 Id. 201;112 Id. 171-178.See also dissenting opinion in 207 S.W. 74.The judgment should be affirmed, as there is no error.

HUMPHREYSJ. MCCULLOCH, C. J., Mr. Justice SMITH, dissenting.

OPINION

HUMPHREYS, J.

Appellant, administrator of the estate of Beulah B. Forehand, instituted suit against appellee in the Dallas Circuit Court to recover $ 2,000, the face value of insurance policy No. 34304, issued to Jesse M. Forehand on the first day of March, 1917, by appellee, in which Beulah B. Forehand was named as the beneficiary.The policy was made the basis of the suit.In addition to setting out the policy, it was alleged in the complaint that, during the life of the policy, Jesse M. Forehand died; that due proof of the death of the insured was made to the appellee, and that appellee had refused, contrary to its obligation, to pay appellant, the representative of the assured, the amount due under the terms of the policy.

Appellee filed answer, claiming exemption from liability under the following clause in the policy: "This policy shall be incontestable after one year after its date except for non-payment of premiums and except for naval or military service in time of war without permit, which are risks not assumed by this company; provided that in case of the death of the insured while engaged in such service without a permit, the amount payable hereunder shall be the reserve of the policy at date of death."

The cause was submitted to the court, sitting as a jury, upon the pleadings, the application for the policy, the policy, proof of death, and the following agreed statement of facts:

"1.That upon written application of Jesse M. Forehand there was issued by the defendant company, March 1, 1917, its policy No. 37304, insuring the life of the said Jesse M. Forehand in the amount of $ 2,000, subject to the terms and conditions of said policy, and that said policy provided for an annual premium of $ 68.26 dollars, which was paid by the said Forehand, and that sufficient proofs of death was filed, except as to securing permit to enter military service and as to amount due under the policy, which is $ 51.44."

"2.That in said policy of insurance issued by the defendant on the life of the said Jesse M. Forehand, among others, is the following provision:

"'This policy shall be incontestable after one year from its date, except for non-payment of premiums and except for naval or military service in time of war without a permit, which are risks not assumed by the company; provided that, in case of the death of the insured while engaged in such service without a permit, the amount payable hereunder shall be the reserve on the policy at date of death.All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall void this policy unless it is contained in the application therefor.'"

"3.That after said policy was issued and while the same was in effect, with all of its terms and conditions, the said Jesse M. Forehand entered, and until and at the time of his death was engaged in, the military service of the United States Government of America as a private in the army of the said United States of America.That, at and during the time the said Forehand entered and remained in said service as aforesaid, a state of war existed between the said United States of America and the Imperial German Government."

"4.That at no time before he entered, or while he was engaged in, the said military service of the said United States of America, during said state of war, did the said Jesse M. Forehand apply for, nor was there issued to him by the defendant, a permit to engage in said service in said time of war in accordance with the provisions of said policy referred to in the paragraph hereinbefore numbered two."

"5.That the said Jesse M. Forehand died of influenza October 12, 1918, in the Base Hospital at Camp Pike, Arkansas, while engaged in said military service of the United States of America as private in the army of said United States of America, without a permit as aforesaid, and while said state of war existed between said United States of America and the Imperial German Government."

The court found appellee liable for $ 51.44, the reserve value, but not liable for the face value of the policy, and, in accordance with the findings, rendered judgment against appellee for $ 51.44, with costs, and dismissed appellant's complaint for the face value of the policy.From the judgment an appeal has been duly prosecuted to this court.

It is insisted that the court erred in construing the war...