DEATH IN MILITARY SERVICE   489

BENHAM v. AMERICAN CENTRAL LIFE INS. CO.

Supreme Court of Arkansas, 1919. 140 Ark. 612, 217 S. W. 462.

Julius Benham, Sr., administrator of the estate of Julius Ben-ham. Jr.. deceased, brought this suit against the American Central Life Insurance Company, of Indianapolis, Ind., to recover 84,000 on four policies of life insurance.

shaw v. Farmers &c. Life Ins. Co. (1920) 107 Kans. 681, 193 Pac. 332, 11 A. L. R. 1091, Comment (1921) 19 Mich. L. Rev. 443.

"The Clauses in the different policies are essentially the same, though there are minor differences in wording; they provide for an exemption from liability for death 'while in the service,' 'while engaged in the military or naval service,' or 'while engaged in the service or in consequence of such service.' If given a broad meaning, they would preclude liability of the insurer for the death of any assured after he has taken the oath to serve in the military or naval forces; but this interpretation, though adopted by some courts, must be rejected as not in-tended by the insurer and not in accordance with the understanding of the insurance world. * * *

"What would be the extent of the insurer's liability where the assured has not availed himself of the privileges offered by the insurer and his death is not the result of the war? What would the insurer's liability be where the assured's death was.due to natural causes, not at all connected with war, but after he had been exposed to the dangers of war? The cases have not considered the latter problem. On the former proposition the eases are about equally divided; the better view, it seems, is that the beneficiary of the assured may recover the full face of the policy. The result thus obtained, even though some violence is done to the meaning of the words of the policy, is sound; because the acceptance of the normal premium is only consistent with continuance of insurance against the ordinary risks of death, and because it is in accord with sound social policy and the understanding of the insurance world. * * *

"It is submitted, therefore, that, to effectuate the intention of the insurer, recovery should be allowed wherever the assured's death was due to natural causes or to causes operating as commonly among civilians as among service men, subject, however to the individual company's ability to pay as affected by the war losses of such company and to the proper protection of the general body of policy-holders. The only condition limiting liability, where there is such a limitation, should be the death of the assured as a result of an increase of hazard due to the war. That this was the intention and that the suggested results are fair as effectuating this intention may be gathered from these considerations: the uncertainty of actuarial calculations in selecting risks, due to an absence of depend-able war service experience; the liberality of insurers' practice in waiving the harsh effects of the war clause by granting free permits and paying such death claims; the fact that whatever extra premiums they charged were held as a sort of security for possible extraordinary losses, and that the insurance companies have returned the extra premiums; the fact that the insurance companies have not suffered losses which could not be distributed without appreciable inconvenience; the fact that their new business since the termination of the war has been amazing. The war clause was not intended to have the apparent meaning, because the acceptance of the normal premium is only consistent with the continuance of insurance against the ordinary risks of death. And possible ambiguities in the wording of the war clause, may be found if one is inclined to look for them. Therefore the courts in determining the legal obligations of the companies under the war clauses ought to follow the administrators of the insurance funds in regarding as much the social function of an insurance fund as the words of the policy." Cohen, J. II. (1921) 21 Colum. L. Rev. 35, 42, 46, 53 [reprinted by permission].

A policy excepted "death resulting from war." The insured was drowned as a result of the torpedoing of the Lusitania. It was held the company was not liable. Vanderbilt v. Travelers Ins. Co. (1920) 112 Misc. 248, 184 N. Y. S. 54, Note (1921) 7 Va. L. Rev. 552, Comment (1920) 19 Mich. L. Rev. 225.