The appellee very plausibly argues that we were in error in holding that there was not sufficient evidence that the insured was engaged in military or naval service at the time of his death, or that he had ever engaged in such military service prior to his death, and in support of that argument emphasizes that a portion of agreed statement of facts in the record is to this effect.
"That said Eugene J. George was ordered to and did report for active duty in said army * * * on the 14th day of November, 1944, * * * and thereupon entered into military service of the United States. During all of the period from the time he was inducted as aforesaid until the time of his death, as stated hereinabove, the said Eugene J. George continued to be in said military service on active duty as a soldier in said army and subject to the rules and regulations of said army."
Appellee frankly admits in its brief that: "It is true that the agreed statement of facts does not attempt to set forth in detail specific acts performed by the insured in the military service after the time of his induction. However, it is clear that the statement that insured 'continued to be in said military service, on active duty as a soldier in said army, and subject to the rules and regulations of said army' is sufficient to include all of the particular acts in which a soldier engages while in the military service."
In our consideration of this case, we are limited to the record. That record does not set forth any act performed by the insured that might be classed as engaged in military or naval service. The words "on active duty as a soldier in said army" describes a status. A soldier may be on active duty without performing any military service. He may be on leave and still have the status of "active duty." To say that a soldier was on active duty means no more than to say that such was his status. It does not mean that he was actually engaged in or had ever actually engaged in performing any military service.
We have not undertaken to specify the particular acts that must be performed in order to hold that one was engaged in military or naval service. That is unnecessary. If the appellee in this case was to escape liability under the provision in the policy relating to suspension of double indemnity, it was incumbent upon the appellee to make good its claim that the double indemnity cease to be in force because the insured engaged in military or naval service in time of war. The appellee undertook to do that by relying upon the agreed statement of facts containing the recital we have quoted. Our ruling is the showing was insufficient.
"Inducted into the military service" is not synonymous with "engaged in military or naval service in time of war." Had the appellee intended that mere induction into the service had the effect of sustaining the double indemnity provision, it could have used the words "if the insured is inducted into military service" instead of the words "if the insured engages in military service." This it did not do and we *Page 513 are not at liberty to construe the provisions as synonymous. A person may be accepted by the Government for military service and remain wholly inactive so far as military service is concerned. It is not our purpose to speculate upon what the deceased did. We are not informed by this record that the deceased engaged in military or naval service in time of war, and for that reason, the provision for double indemnity benefits did not cease to be in force.
The application for rehearing is overruled.
HARWOOD, J., dissents.