McQueen v. Sovereign Camp W. O. W.

February 28, 1921. *Page 413

The opinion of the Court was delivered by There is only one question in this case. Lonnie McQueen took out a policy of insurance with the Sovereign Camp Woodmen of the World. This policy required the insured to notify the company if he enlisted in the army or navy in time of war, for service outside of the United States, and to pay an additional premium. Mr. McQueen was drafted and died in France. He neither notified the company nor paid the extra premium. Judgment was given for the plaintiff, the beneficiary, on the ground that the deceased was not an enlisted man, but a drafted man, and was not required by the terms of the policy to give the notice or pay the extra premium. The defendant offered to return the premium.

The question is: Was Lonnie McQueen an enlisted man within the terms of the policy? The increased danger of the insured as a soldier is fully recognized by the policy in the requirement of an extra premium. That danger was recognized as increased by service outside of the United States, and this is true, whether his enlistment was voluntary or enforced. The difference is technical and not a matter of substance. The technical objections even cannot be sustained.

Century Dictionary:

"Enlist: 1. To enter, as a name on a list; enroll, register. 2. To engage for public service, especially military or naval service, by enrolling after mutual agreement, as to enlist men for the army."

Webster:

"To enroll; to register; to enter a name on a list. 2. To engage in public service, by entering the name on a register, as an officer enlists men." *Page 414

Bouvier:

"Enlistment: The act of making a contract to serve the Government in a subordinate capacity, either in the army or navy."

It is thus seen that there is high authority for holding that, when a man enters his name on a list of the army or navy, he is an enlisted man, whether he volunteered or was drafted. The service outside of the United States is recognized by the policy as requiring a higher premium. The plain English of the policy makes no distinction and there is none.

The exception that raises this question is sustained, and the judgment is reversed.

GARY, C.J., and WATTS and COTHRAN, JJ., concur.

COTHRAN, J. I concur upon the additional ground that the provision in the certificate relating to "officers and enlisted men" should be interpreted in the common acceptation of those words as referring to commissioned officers and all soldiers below that rank, whether voluntarily enlisted or enlisted (which necessarily occurs) under the Draft Act (U.S. Comp. St. 1918, U.S. Comp. St. Ann. Supp. 1919. §§ 2044a-2044k). This interpretation conforms to Articles of War 1, 2 (U.S. Comp. St. § 2308a;) U.S. Army Regulations April, 1917; Draft Act, article or section 1, paragraphs 3, 7, sections 2, 10, 12; Barnes' Federal Code, § 10221 (U.S. Comp. St. 1918; U.S. Comp. St. Ann. Supp. 1919, § 2044a) and has the support of Hillard v. Stewartson,48 N.H. 280, and Miller v. Illinois Co., 138 Ark. 442. 212 S.W. 310, 7 A.L.R. 378. *Page 415

*413The opinion of the Court was delivered by

There is only one question in this case. Donnie McQueen took out a policy of insurance with the Sovereign Camp Woodmen of the World. This policy required the insured to notify the company if he enlisted in the army or navy in time of war, for service outside of the United States, and to pay an additional premium. Mr. McQueen was drafted and died in France. He neither notified the company nor paid the extra premium. Judgment was given for the plaintiff, the beneficiary, on the ground that the deceased was not an enlisted man, but a drafted man, and was not required by the terms of the policy to give the notice or pay the extra premium. The defendant offered to return the premium.

The question is: Was Connie McQueen an enlisted man within the terms of the policy? The increased danger of the insured as a soldier is fully recognized by the policy in the requirement of an extra premium. That danger was recognized as increased by service outside of the United States, and this is true, whether his enlistment was voluntary or enforced. The) difference is technical and not a matter of substance. The technical objections even cannot be sustained.

Century Dictionary:

“Enlist: I. To enter, as a name on a list; enroll, register. 2. To engage for public service, especially military or naval service, by enrolling after mutual agreement, as to enlist men for the army.”'

Webster:

“To enroll; to register; to enter a name on a list. 2. To engage in public service, by entering the name on a register, as an officer enlists men.”

*414Bouvier:

“Enlistment: The act of making a contract to serve the Government in a subordinate capacity, either in the army or navy.”

It is thus seen that there is high authority for holding that, when a man enters his name on a list of the army or navy, he is an enlisted man, whether he volunteered or was drafted. The service outside of the United States is recognized by the policy as requiring a higher premium. The plain English of the policy makes no distinction and there is none.

The exception that raises this question is sustained, and the judgment is reversed.

I concur upon the additional ground that the provision in the certificate relating to- “officers and enlisted men” should be interpreted in the common acceptation of those words as referring to commissioned officers and all soldiers below that rank, whether voluntarily enlisted or enlisted (which necessarily occurs) under the Draft Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919. §§ 2044a-2044k). This interpretation conforms to Articles of War 1, 2 (U. S. Comp. St. § 2308a;) U. S. Army Regulations April, 1917; Draft Act, article or section 1, paragraphs 3, 7, sections 2, 10, 12; Barnes’ Federal Code, § 10221 (U. S. Comp. St. 1918; U. S. Comp. St. Ann. Supp. 1919, § 2044a) and has the support of Hillard v. Stewartson, 48 N. H. 280, and Miller v. Illinois Co., 138 Ark. 442, 212 S. W. 310, 7 A. L. R. 378.