Merchants Nat. Bank v. Commonwealth Life Ins. Co.

The policy in question with reference to the double indemnity benefits contains the following provision, as set out in the opinion of the Court of Appeals: "The provision for Double Indemnity Benefits shall cease to be in force * * * (b) if the Insured engages in military or naval service in time of war."

It is our opinion that the provision for double indemnity benefits did cease to be in force prior to the death of the insured, and was not then in force because he had subsequent to the issuance of the policy engaged in military service in time of war, and such service had not terminated at that time, and the double indemnity provision of the policy had not for any reason shown been restored so as to be then in force. This conclusion is supported by Olson v. Grand Lodge, A. O. U. W. of N.D., 48 N.D. 285, 184 N.W. 7, 15 A.L.R. 1270, a decision of the Supreme Court of North Dakota wherein the case of Myli v. American Life Ins. Co., 43 N.D. 495, 175 N.W. 631, 11 A.L.R. 1097, by the same court, is distinguished; and by many of the authorities cited in the note to each of these cases. The following authorities, also, support this view: Field v. Western Life Indemnity Co., Tex.Civ.App., 227 S.W. 530, writ of err. ref. 240 S.W. XVII; Huntington v. Fraternal Reserve Ass'n v. Oshkosh, 173 Wis. 582, 181 N.W. 819; State Mutual Ins. Co. v. Harmon, 72 Ga. App. 117, 33 S.E.2d 105; Life Casualty Ins. Co. v. McLeod, 70 Ga. App. 181, 27 S.E.2d 871; Lindsey v. Life Casualty Ins. Co., 70 Ga. App. 190, 27 S.E.2d 877; Bending v. Metropolitan Life Ins. Co., 74 Ohio App. 182, 58 N.E.2d 71; Sandsted v. American Cent. Life Assurance Co., 109 Wn. 338,186 P. 1069.

Concluding, therefore, that the reasoning of these cases, resting upon status rather than activity, represents the sounder view, the judgment of the Court of Appeals is reversed, and a judgment is here rendered affirming the judgment of the trial court.

Reversed and rendered.

GARDNER, C. J., and BROWN, FOSTER, LAWSON and STAKELY, JJ., concur.

LIVINGSTON and SIMPSON, JJ., dissent.