Kelly v. Fidelity Mutual Life Insurance

172 N.W. 152, 169 Wis. 274, 4 A.L.R. 845, 1919 Wisc. LEXIS 150

• Court: Wisconsin Supreme Court
• Decided: April 29, 1919
• Status: Published

Opinion

Rosenberry, J.

The defendant admits that it is liable upon the policy to the extent of the premiums paid, but claims it is not liable for the full amount of the policy. It is admitted that at the time of his death the insured was engaged in the military service of the United States. The crucial question is, Did the insured die as a result, directly or indirectly, of engaging in the military service ?

Having in mind the ordinary rule that all provisions, conditions, or exceptions which tend to limit the liability of the insurer should be construed most strongly against the party preparing the contract and for whose benefit they are inserted (French v. Fidelity & C. Co. 135 Wis. 259, 115 N. W. 869), it is clear that the insurer did not intend by the language used to except from the policy death of the insured while in the military or naval service. The language used is not apt to express such an intention. The policy does not say that recovery shall be limited to the return of premiums paid if death shall occur while the insured is engaged in the service or work described, but the limitation applies only to death which occurs “as a result, directly or indirectly, of engaging in such service.” While it is true that at the time the policy was. written this country was not engaged in war, nevertheless the world war was then being carried on, and no doubt the clause was inserted by reason of the fact that persons insured might thereafter become engaged in military service. The limitation applies not only to the military or naval service of the United States but to that of any country. We think it is clear that the language was used for the purpose of limiting the liability to the return of the premiums in cases where death resulted directly or.indirectly from some cause peculiar to the military service and one not common to military service and civilian life. The deceased came to his death by reason of an accident while riding a motorcycle under circumstances which were not in any way peculiar to the military service. Civilians are killed almost daily under similar circumstances. The hazards attendant upon riding a motorcycle under the facts set out in this case were no greater because the insured was engaged in the military service of the United States than if he were performing a like ,act as a civilian and apart from the military service. In other words, his death resulted from circumstances which are common to military and civil life. If this is not the meaning of the clause, it is difficult, if not practically impossible, to ascribe any meaning to it, unless it be held that the fact that the deceased engaged in the military service operated as a limitation upon the liability of the insurer. Such a construction cannot be placed upon the clause for the reasons stated. We think this case is clearly distinguishable from Coxe v. Employers’ L. A. Corp. [1916] 2 K. B. 629.

By the Court. — Order affirmed.