the plaintiff as offered by the defendant. The defendant will recover costs of this court.
Robinson, C. J., and Englert and Coffey, District Judges, concur.
Christianson and Birdzell, JJ., disqualified, did not participate; Encvert and Correy, District Judges, sitting in their stead.
Grace, J. (dissenting). This action is one to recover on a life insurance policy. The trial was to the court upon stipulated facts. On the 6th day of April, 1918, the defendant, a fraternal benefit association, issued its policy, in the sum of $1,000 on the life of the insured, payable at death to his father, the plaintiff. Insured was 21 years of age and unmarried.
We are of the opinion, the judgment should be affirmed, and this principally for three reasons:
Firstly. The following provision in the certificate, relied on by the defendant to avoid liability, is void, as being against public policy, and as tending in some degree to deter enlistments in military service in time of war. The provision is as follows: .
“This beneficiary certificate is issued and accepted upon the express consent of the member that in the event he: engage in military, naval, submarine, or eria] service in time of war, without first obtaining a permit signed by the Grand Master Workman and Grand Recorder, and availing himself of one of the options adopted by the advisory board of said Grand Lodge at its meeting held on September 1, 1917, (No. 1, 2 or 3), the amount payable upon this beneficiary certificate in the event of his death during such service shall be the reserve actually maintained by the Grand Lodge in respect to this beneficiary certificate.”
If, for example, one of military age possess a beneficiary certificate for $2,000 at the time war was declared by the United States against Germany, and he at that time understood that, if he enlisted in military service without the consent of the insurance company, the certificate would become void, or largely so, it can hardly be doubted that he would in some degree be deterred from enlisting; or, even after the passage of the Selective Service Act, he might for the same reason hesitate to comply with its requirements, knowing, in the circumstances, that his act might avoid the certificate.
If such, in some degree, should be the effect, it cannot well be denied
