492   MATURITY OF THE POLICY

the service whether such death occurred during the period of his service or afterwards.

It is well known that there is more danger in performing the duties incident to naval or military service than other occupations. Hence after the world's war commenced, presumably this restrictive clause was added in anticipation that the insured might join the army or navy, and recognizing that the duties of such a service imposed additional danger to the insured, it was provided that if death ensued while he was engaged in the performance of a military or naval service, that the company would be exempt from liability. The word "engaged" as used in the policy means an active or physical performance of some act or duty in connection with military service. As above stated, the rule applies that the clause should receive the interpretation most favorable to the plaintiff because the defendant is responsible for the language used.

In the case at bar the insured died from influenza and the record shows that this disease was prevalent throughout the United States and that soldiers and civilians alike contracted it and died from it.

The death of the insured then was in no sense caused by per-forming any military service or in consequence of being engaged in military service.

It follows that the court erred in directing a verdict for the defendant, and for that error the judgment must be reversed and the cause remanded for a new trial.

SMITH, J., dissents; Mc('rLLocH, C. J., not participating.''

18 See comment on this ease (1920) 68 U. of Pa. L. Rev. 399.

Accord: Nutt v. Security Life Ins. Co. (1920) 1,12 Ark. 29, 218 S. W. 675, where the insured died of influenza while in a camp in the United States. In this case the court said (p. 32) : "While we do not regard the clause now before us for construction as containing any ambiguity, yet an additional reason in support of the conclusion reached upon the interpretation of the clause may be

• found in the fact that no reduction was provided in the policy of the premium during the period of enlistment. Had it been the intention of appellee insurance company to relieve itself from death resulting from natural or ordinary causes during the period of enlistment, it would certainly have provided for a corresponding reduction in the premium. It is hardly supposable that the same premium of $68.26 per annum would have been exacted to give the insured protection to the extent of the reserve value of the policy when the reserve value was less than the annual premium. The fact that no reduction was made in the premium is indicative of the intent on the part of the company to exempt itself from the payment of the face of the policy under the war exemption provision from death caused by enhanced danger or hazard to life incident to war, and not from death incident to causes for which it imposed and exacted a fixed annual premium."

As bearing upon the above argument J. H. Cohen in op. cit., note 17 (1921) 21 Colum. L. Rev. 35, at page 51, says: "If recovery of the full face of the policy is denied under these circumstances, it must necessarily follow that as soon as the assured took the oath he ceased to be covered at all, for surely the assured did not intend to pay a premium which would purchase insurance to the amount of such premium or less. If this is true, every surviving service man is entitled to claim a refund of premiums paid during such period. It is doubtful whether the insurance companies would relish this notion of refunding such premiums to ex-service men.

"Mr. Francis V. Keesling, in recent letters, to the writer, suggests, in answer