William A. Valentine, Wilkes-Barre, for appellant.
Nelson A. Bryan, Wilkes-Barre, for appellee.
Before Rhodes, P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 237]
On July 25, 1950, one month to the day after the commencement of hostilities in Korea, defendant-appellee issued a policy of insurance upon the life of Clyde P. Harding, minor plaintiff's deceased husband. The face amount of the policy was $2,500, but it contained a provision providing for double indemnity if the death of the insured resulted solely through accidental means. The policy provided in part as follows:
' Risks Not Assumed : -- The Company shall not be liable for the additional Accidental Death Benefit specified above if said death shall result by reason of any of the following: * * * (d) Military, air or naval service in time of war. * * *
[ 171 Pa. Super. Page 238]
' Termination: -- These provisions for the additional Accidental Death Benefit shall immediately terminate: * * * (b) if the Insured shall at any time, voluntarily or involuntarily, engage in military, air or naval service in time of war; * * *.'
The insured was a member of the 28th Division, Pennsylvania National Guard, having enlisted December 5, 1949. The 28th Division was inducted into the federal service on September 5, 1950, and on September 11, 1950, the insured was killed in a railroad accident on the Pennsylvania Railroad en route to Camp Atterbury, Indiana, for military training.
The minor plaintiff brought action in assumpsit for the full amount of the policy, to wit, $5,000, claiming double indemnity on account of the accidental death, and subsequently moved for judgment on the pleadings under Rule 1034 of the Pa.Rules of Civil Procedure, 12 P.S.Appendix. The motion was heard by the court en banc and after argument judgment was directed to be entered for the plaintiff in the sum of $2,430.40, being the amount due under the principal insuring clause of the policy after an adjustment of a year's premium and a refund for the premium collected on the accidental death benefit. Judgment was denied plaintiff for the accidental death benefit; hence this appeal.
Appellee concedes that the death of the insured 'was not the result of the insured's military service in time of war; the only contention being that upon the insured's induction into the armed forces of the United States on September 5, 1950, the * * * liability for double indemnity * * * was terminated.' The learned court below so held, following the decision of this Court in Wolford v. Equitable Life Ins. Co. of Iowa, 162 Pa. Super. 259 (allocatur refused ibid. xxv), 57 A.2d 581, and Throne v. Pa. Mutual Life Ins. Co., 58 Pa.Dist. & Co.R. 109.
[ 171 Pa. Super. Page 239]
In the Wolford case, where a policy of life insurance provided that double indemnity benefits 'shall terminate: * * * (c) In the event that the insured shall engage in military * * * service in time of war', we held, in an opinion by Arnold, J., that the double indemnity provisions terminated when the insured entered the military service of the United States in time of war. There, as here, the insured's death by accidental means was admitted and there, as here, it was argued that since there was no causal connection between the insured's engaging in military service and his death the insurer was liable. But we said, 162 Pa. Super, at pages 260, 261, 57 A.2d at page 581:
'The plaintiff-appellant contends that the word 'engage' (in clause 19 of the policy) means more then merely 'status', and that it signifies 'action' or 'active participation', and under the policy denotes such action as increased the hazard.
'Clause 19 is not a 'result' clause as in Selenack, Admr., v. Prudential Insurance Co. of America, 160 Pa. Super. 242, 50 A.2d 736, 737, in which the policy provided for an exclusion of liability where 'death * * * resulted * * * from having been engaged in military or naval service in time of war.' Such a limitation clause has generally been construed as being tied into the doctrine of causation, so that unless the accident and death resulted i. e. were caused by, or flowed from, the military service, the insurer was held liable. In other words, in the 'result' clause cases, mere status is usually held not to be determinative of liability, the real question being causation or increased hazard. [In the Selenack case, supra, we were concerned only with the resulting type of exclusion clauses.] * * *
'The construction of such provisions in insurance contracts depends entirely upon the precise wording of the particular policy. [The material wording, to wit, 'engage in military * * * service in time of war' is
[ 171 Pa. Super. Page 240]
precisely the same in the policy in the Wolford case and the case at bar.] In the present contract the insurer, by plain words, provided for the termination of the double indemnity provisions upon the happening of an event. What event? The contract answers this without ambiguity: '[In] the event that the insured shall engage in military * * * service in time of war.' Since the event bears no relationship to cause and effect, the policy terminated when the insured entered the military service of the United States in time of war, for then he was engaged in the military service and was required, except for leaves or furloughs, to give his entire time thereto. We construe the word 'engaged' to mean 'enter into' where used in a termination clause, but not necessarily so in a result clause.'
The Wolford case, however, while recognized as authority for holding that 'status' and not 'character of service' is the test of termination of the double indemnity feature, is not controlling here, for there the fact that the insured met his death 'in time of war' was not questioned. Here it is seriously questioned. In fact, the case turns on what the parties to the contract ...