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HARDING v. PENNSYLVANIA MUTUAL LIFE INSURANCE CO. (02/14/53)

February 14, 1953

HARDING
v.
PENNSYLVANIA MUTUAL LIFE INSURANCE CO., APPELLANT



Appeal, No. 311, Jan. T., 1952, from judgment of Superior Court, Feb. T., 1952, No. 3, reversing judgment of Court of Common Pleas of Luzerne County, Jan. T., 1951, No. 907, in case of Catherine Reid Harding, a minor, by Edward D. Reid v. Pennsylvania Mutual Life Insurance Company. Judgment of Superior Court affirmed; reargument refused March 24, 1953.

COUNSEL

M. Stuart Goldin, with him Abe J. Goldin and Goldin & Goldin, for appellant.

William A. Valentine, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stern

[ 373 Pa. Page 271]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

This case is parallel with that of the Beley case in which an opinion has this day been handed down.

[ 373 Pa. Page 272]

The insured here was Clyde P. Harding. The beneficiary of his policy at the time of his death was his minor wife, Catherine Harding, who, by her guardian, brought the present action to recover on the policy, the face amount of which was $2,500.00 with a supplementary contract providing for double indemnity if death resulted solely through external, violent and accidental means. Harding was a member of the 28th Division, Pennsylvania National Guard, which was inducted into the federal service on September 5, 1950. He was killed on September 11, 1950, in a railroad accident while enroute to Camp Atterbury, Indiana, for military training.

Harding's policy, as far as its face amount was concerned, did not contain the clause which appeared in the Beley policy exempting the Insurance Company from liability if the insured engaged in military or naval service in time of war; accordingly, the Company, in the present case, admitted liability for the face amount of the policy. It resisted payment, however, of the additional accidental death benefit because, as to that, there were the same provisions as in the Beley policy, namely, that the Company should not be liable if the death of the insured resulted by reason of military, air or naval service in time of war, and that the right to the additional accidental death benefit should immediately terminate if the insured should at any time, voluntarily or involuntarily, engage in military, air or naval service in time of war. While, as the Company admitted, Harding's death did not result by reason of his military service, defendant claimed that the insured was engaged in military service in time of war. This raises the same question as that involved in the Beley case, namely, whether the conflict in Korea constituted "war" within the meaning of that term as used in the policy. The Court of Common Pleas of Luzerne County,

[ 373 Pa. Page 273]

    where the present action was instituted, held that plaintiff could recover only for the face amount of the policy and not for the additional accidental death benefit. On appeal, the Superior Court reversed this decision and awarded judgment for plaintiff for both of the claimed items of recovery (171 Pa. Superior Ct. 236, 90 A.2d 589). For the reasons ...


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