I am in accord with the foregoing opinion written by the late Judge John F. Main, and desire to supplement the same by referring to some provisions of our state constitution and statutes which seem to me relevant.
Art. X, § 5, of our state constitution, reads as follows:
"The militia shall, in all cases, except treason, felony and breach of the peace, be privileged from arrest during the attendance at musters and elections of officers, and in going to and returning from the same."
Rem. Rev. Stat., § 8511 [P.C. § 3765-57], reads in part as follows:
"No person belonging to the military forces of this state shall be arrested under any civil process while going to, remaining at, or returning from any place at which he may be required to attend military duty. . . . Any person belonging to the military forces of the state while going to or returning from any parade, encampment, drill or meeting which he may be *Page 547 required by law to attend shall be allowed to pass free through all toll-gates and over all toll-bridges and ferries."
Rem. Rev. Stat., §§ 8548, 8549 [P.C. §§ 3765-92, 3765-93], being articles 15 and 16 of the articles governing the organized militia of Washington, read as follows:
"§ 8548. Art. 15. Absence from duty. Any enlisted man who absents himself from duty without leave shall be punished as a military court may direct.
"§ 8549. Art. 16. Nonattendance or leaving militaryexercises. Any officer or enlisted man who fails, except when prevented by sickness or other necessity, to repair at the fixed time to the appointed place of parade, exercise or other rendezvous, or goes from the same without leave, before he is dismissed or relieved, shall be punished as a military court may direct."
By Rem. Rev. Stat., § 8469 [P.C. § 3765-14], the senior commanding officer at any station of any portion of the organized militia may, upon written request of a superior court judge, sheriff, or mayor, order out the organization at that station and cause them to perform such duties as the circumstances shall require. Wherever a member of the national guard may be when receiving such an order, he must at once proceed to the designated rendezvous and report for duty. By § 8471 [P.C. § 3765-16], it is made an offense to fail to obey such an order.
In the case at bar, it appears that, on the evening of the accident, the organization of the national guard of which Doke was a member was to meet at the armory in Olympia, for a stated drill. Doke's presence with the organization on that evening was required by general order, which he was obligated to obey, just as he was obligated to obey any special order calling him to duty pursuant to § 8469, above referred to. Had he failed to be present at the drill without adequate excuse, *Page 548 he would have been subject to punishment by court martial, pursuant to §§ 8548, 8549, supra. On the day of the accident, Doke was at his home station, going about his usual business affairs. It seems to me clear from the evidence that, just prior to the accident, Doke left his home for the purpose of proceeding to the armory to participate in the training of the organization of the national guard of this state of which he was a member.
Respondent insurance company itself prepared the policy of insurance upon which this action is based. It undertook to protect the insured from loss or disability resulting from accident "caused by service classed as incurred in line of duty as a National Guardsman." If, pursuant to the portions of the constitution and statutes of this state above referred to, a member of the national guard while at his home or elsewhere receives from his commanding officer a special order to report for duty at his armory or elsewhere, he must at once proceed to obey that order, and in so obeying it, is, in my opinion, clearly in line of duty. I am convinced that the same rule should apply to such a situation as is presented by the evidence in the case at bar. The emergency was less, but the duty was in nature the same.
Upon the record before us, I am convinced that Doke, at the time he was injured, enjoyed the protection of the policy of insurance sued upon.
I accordingly concur in the result reached in the foregoing opinion.