Redd v. American Central Life Ins. Company

• Decision Date: 02 December 1918
• Citation: 207 S.W. 74,200 Mo.App. 383
• Parties: HARRY T. REDD and BELLE THOMPSON, Respondents, v. AMERICAN CENTRAL LIFE INSURANCE COMPANY, Appellant
• Court: Kansas Court of Appeals

207 S.W. 74

200 Mo.App. 383

HARRY T. REDD and BELLE THOMPSON, Respondents, v. AMERICAN CENTRAL LIFE INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 2, 1918

Appeal from Cooper Circuit Court.--Hon. Jack G. Slate, Judge.

AFFIRMED.

Judgment affirmed.

George F. Longan and B. B. Welliver for appellant.

W. W Kingsbury and Roy D. Williams for respondents.

BLAND J. Trimble, J., concurs; Ellison, P. J., dissents in a separate opinion.

OPINION

BLAND J.

Plaintiffs were beneficiaries under a policy of life insurance written upon the life of Roy W. Redd. The application for the insurance provided,

"That active service in the army or navy, in time of war, shall invalidate said contract of insurance, unless a permit for such service shall have been applied for in writing and endorsed upon the policy by the Company, and such extra premium paid therefor upon notification as the then Rules of the Company may provide."

The policy provided.

"In case of death from service in war without permission from the Company, the full reserve for this policy at the time of such death only will be paid."

The agreed statement of facts recites,

"That insured enlisted in time of war on November 28, 1917, at Jefferson Barracks, Missouri, as private, Medical Department, Section 3, Medical Officer's Training Camp, unassigned, for the term of "The Emergency;" that he was registered under the Selective Service Law in Blackwater, Cooper County, Missouri, that thereafter he was sent by the military authorities to Camp Funston, Ft. Riley, Kansas, where he died of pneumonia, while in service as aforesaid."

No permission was given the insured by the defendant to enter military service. Other than this policy of insurance the insured had ten thousand dollar War Risk insurance with the United States Government.

Defendant tendered to plaintiffs the full reserve for the policy at the time of the insured's death but plaintiffs refused the same. The court entered judgment in favor of plaintiffs for the face value of the policy, and defendant has appealed.

It is defendant's contention that the insurance was void, except as to the reserve, for the reason that the insured, as defendant claims, entered active service in the army in time of war without its permission. A determination of what active service means in a military sense disposes of this case.

Defendant does not seem to draw any distinction between service in the army and active service therein. We believe that one has entered the service of the army when he has passed the examinations, taken the oath, been enrolled and has subjected himself to the orders of the military. [See Welts v. Ins Co., 48 N.Y. 34.] It is therefore apparent that insured had entered service in the army at the time of his death. However, we believe that there is a distinction between service in the army and active service therein. The application and policy must be construed favorably to the insured. We think that the word "active" would not have been inserted by defendant in the application were it not intended that it be given some meaning. In fact, the words, "active service" in a military sense have a well defined meaning. The New Standard Dictionary defines active service in a military sense as "(1) In garrison or at sea in time of peace; (2) Before an enemy in time of war." The New Century Dictionary, Vol. 4, p. 62, defines it, "Active service (Milit.): (1) The performance of duty against an enemy, or operations carried on in his presence." The kind of active service that we are dealing with is, according to the policy, such service "in time of war." Is one who has entered a military...