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BELEY v. PENNSYLVANIA MUTUAL LIFE INSURANCE CO. (02/14/53)

February 14, 1953

BELEY
v.
PENNSYLVANIA MUTUAL LIFE INSURANCE CO., APPELLANT



Appeal, No. 29, March T., 1953, from judgment of Superior Court, April T., 1952, No. 91, reversing the judgment of County Court of Allegheny County, 1951, No. 1393, in case of Julia Beley v. Pennsylvania Mutual Life Insurance Co. Judgment of Superior Court affirmed; reargument refused March 24, 1953.

COUNSEL

Thomas Lewis Jones, with him W. Denning Stewart and Stewart & Jones, for appellant.

Samuel J. Goldstein, with him Herbert Jacobson, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Stern

[ 373 Pa. Page 233]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

Is the present struggle in Korea a "war" within the meaning of that term as employed in a certain life insurance policy? That is the question for decision in this litigation. In the action brought to recover on such a policy the County Court of Allegheny County awarded to plaintiff, under the terms of the policy, only a return of the amount of the premiums which had been paid thereon. On appeal, the Superior Court reversed and entered judgment for plaintiff for both the face amount of the policy and the additional accidental death benefit. From that decision (171 Pa. Superior Ct. 253, 90 A.2d 597) we allowed an appeal, the determination of the issue involved being obviously of concern to many beneficiaries of identical or similar policies.

Andrew Beley, serving with a United States Army infantry division in the conflict in Korea, was killed in action on March 7, 1951 while serving with the United States contingent of the United Nations forces. On May 1, 1945, Pennsylvania Mutual Life Insurance Company, defendant, had issued a policy on his life in favor of his mother, Julia Beley, the present plaintiff. The policy was in the amount of $1,000 with a supplementary contract attached which provided for double indemnity in case of external, violent and accidental death. One of the provisions of the policy was that "In the event that the Insured engages in military or naval service in the time of war, the liability of the Company shall be limited to the return of the premiums paid hereunder, unless the Insured shall have previously secured from the Company a permit to engage in such service." (Admittedly, no such permit had been secured.)

In connection with the additional accidental death benefit there were provisions as follows: "Risks Not

[ 373 Pa. Page 234]

Assumed: -- The Company shall not be liable for the additional Accidental Death Benefit specified above if said death shall result by reason of any of the following: ... (d) Military, air or naval service in time of war. (e) Any work in connection with actual warfare, riot, insurrection, police duties or any act incidental thereto, either on land or water...."

"Termination: -- These provisions for the additional Accidental Death Benefit shall immediately terminate: ... (b) if the Insured shall at any time, voluntarily or involuntarily, engage in military, air or naval service in time of war;...."

The Company refused payment of the face amount of the policy on the ground that the insured was engaged in military service "in the time of war" and refused payment of the accidental death benefit on the additional ground that the death of the insured had resulted by reason of such service. In our opinion, the Superior Court properly entered judgment for plaintiff for the whole amount of her claim.

The facts concerning the Korean situation are, briefly, as follows: -- By the charter of the United Nations there was established the principle of mutual assistance, and certain provisions were embodied therein for insuring effective and prompt action for the maintenance of international peace. In pursuance of that object Congress, in the Mutual Defense Assistance Act of October 6, 1949, 63 Stat. 716, authorized the President to furnish military assistance, as therein provided, to the Republic of Korea and the Republic of the Philippines. On June 25, 1950, a commission having reported that North Korean forces had made an unprovoked assault upon the Republic of Korea, the Security Council denounced the attack as a breach of international peace, called upon the authorities of North Korea to withdraw their armed forces forthwith, and asked all members of the United Nations to render every assistance

[ 373 Pa. Page 235]

    in the execution of the resolution. On June 27, 1950, the President made a public statement in which he referred to this call by the Security Council and stated that under such circumstances he had ordered United States air and sea forces to give the Korean government troops cover and support. On that same day the Security Council by a second resolution recommended that the members of the United Nations furnished whatever assistance to the Republic of Korea might be necessary in order to repel the armed attack and to restore international peace and security in the area. On July 7, 1950, still another resolution of the Security Council recommended that all members provide military forces and other assistance for a unified command under the United States, requested the United States to designate the commander of such forces, and authorized the use of the United Nations' flag in the action against the North Korean invaders.

Although Congress has, in certain enactments, recognized that military forces of the United States are operating in Korea and has appropriated funds for the support of the armed forces there, it is obvious from the above recital of events that there was not, nor ever has been, any declaration of war by Congress against any other country, state or nation, but merely a dispatch to Korea by Presidential order of military, naval and air forces of the United States in accordance with the provisions of the Charter of the United Nations and the recommendations of the Security Council. Since, therefore, it is Congress that has the power under the Constitution to declare war, and since that power is exclusive (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 642), it is clear that the action being waged in Korea is not a "war" within what may be termed the "constitutional" or "legal" sense of that term. Defendant urges, however, that it is in fact a war, because what started apparently as a minor "police

[ 373 Pa. Page 236]

    action" has developed, by reason of its duration, its bitterness, and the number of its casualties, into a sanguinary struggle of grave proportions, and urges further that the connotation of the word "war" in the Company's insurance policies should not be limited to a formally declared war, but embraces any clash of arms in which the methods of war are pursued, and especially where the conflict is, as in Korea, of such extensive dimensions. The trouble with this argument is that if the word "war" in such policies were to be interpreted as other than one declared by Congress, courts would be utterly at sea whenever the question arose as to whether certain expeditions in which United States forces were engaged constituted a war. It has been pointed out in a report of the Committee on Foreign Affairs of the House of Representatives that during the period between 1798 and 1945 there were some 150 or more occasions on which our military forces were engaged in various countries, notably in China, Mexico, Central America and Caribbean Republics, in the course of some of which incidents there were really serious engagements and many casualties. Who, then, would be the tribunal to decide whether such an undeclared conflict did or did not amount to a "war," -- a jury, a court? What would be the criterion of decision, -- the number of troops involved, the number of casualties, the duration of the hostilities? If, for example, Beley had lost his life in action in Korea a day or two after our troops first arrived there, would a war have then existed, or would it not have become a war until the magnitude of the struggle finally revealed itself and the casualty lists became so distressingly long and frequent?

Obviously the right of an insured to recover under a life insurance policy should not be left to depend upon the determination of a question not governable by

[ 373 Pa. Page 237]

    any definite test either legal or factual; on the contrary, its terms and conditions should be interpreted according to some definite and uniform standard. Even were it to be conceded that the meaning of any of its terms was really involved in doubt, that doubt, according to all established canons of construction, should be resolved in favor of the insured. A policy of life insurance is a highly technical instrument, drawn up presumably with meticulous care by legal experts on behalf of the Insurance Company, and who not only intend to use all terms in their legal sense but know how to accomplish that result; it may be assumed, therefore, that if defendant had here meant to invest the term "war" with a broader connotation than its "constitutional" or "legal" intendment, it would have effected this by the addition of words indicating such an intention as, for example, "declared or undeclared" war.

The existence or non-existence of a state of war is a political, not a judicial, question, and it is only if and when a formal declaration of war has been made by the political department of the government that judicial cognizance may be taken thereof; when so made it becomes binding upon the judiciary: Bishop v. Jones & Petty, 28 Texas 294, 319, 320; Perkins v. Rogers, 35 Indiana 124, 167; Hamilton v. M'Claughry, 136 Fed. 445, 449; Verano v. DeAngelis Coal Co., 41 F. Supp. 954. An exact question involving the application of this principle arose in connection with the Japanese surprise attack on Pearl Harbor on December 7, 1941, war with Japan not being officially declared by Congress until the day following, December 8. As we all know, an appalling number of lives were lost in that infamous attack, and yet, in a majority of the cases involving the interpretation of the word "war" as employed in life insurance policies similar to the one here in question, it was held that war did not exist on December

[ 373 Pa. Page 2387]

, and therefore the beneficiaries of such policies were entitled to recover: West v. Palmetto State Life Insurance Co., 202 S.C. 422 (25 S.E. 2d 475); Rosenau v. Idaho Mutual Benefit Association, 65 Idaho 408, 145 P. 2d 227; Savage v. Sun Life Assur. Co. of Canada, 57 F. Supp. 620; Pang v. Sun Life Assur. Co. of Canada, 14 C.C.H. Life Cases 496 (37 Hawaiian Rep. 208).

The provision in the present policy exempting defendant from liability for the additional accidental death benefit if death should result by reason of "any work in connection with actual warfare, riot, insurrection, police duties or any act incidental thereto, either on land or water," evidently refers to civil work as distinguished from the immediately preceding exemption in the case of "military, air or naval service," and therefore has no application to the present case. It may be noted, however, in passing, that in this particular clause the term "actual warfare" is used, indicating an appreciation on the part of the insurer of the distinction between the more technical term "war," and the general term "actual warfare."

Defendant directs some argument to the proposition that, even if it be held that the insured was not engaged in military service in time of war as far as the action in Korea is concerned, the United States was still at war with the Axis Powers when Beley was killed on March 7, 1951. Although the Constitution provides that Congress is the authority to declare war, there is no provision in regard to an authority which should have the power to declare the termination of war. It is true that for certain special purposes it may be important or even necessary for Congress or the President to declare officially a date marking a time when a war is to be considered as legally ended; indeed different such dates may be designated for various purposes.

[ 373 Pa. Page 239]

For the particular purpose here involved there was no need for a pronouncement that the war with Germany, Italy and Japan had in fact terminated some six years before Beley's death, although it may be added, as pointed out by the Superior Court in Harding v. Pennsylvania Mutual Life Insurance Company, 171 Pa. Superior Ct. 236, 241, that a joint resolution of Congress of July 25, 1947 (61 Stat. 449) did declare that, in order to terminate certain emergency and war powers, the war with those countries should be deemed ended as of that date.

The judgment of the Superior Court is affirmed.

Disposition

The judgment of the Superior Court is affirmed.

     contd

[EDIT ]

CONCURRING OPINION BY MR. JUSTICE MUSMANNO

On March 4, 1945, Julia Beley made application for a policy of life insurance in the sum of $1,000 on her son Andrew Beley, then a student 17 years of age. The policy, which was issued May 1, 1945, provided, inter alia: "In the event that the Insured engages in military or naval service in the time of war, the liability of the Company shall be limited to the return of the premiums paid hereunder, unless the Insured shall have previously secured from the Company a permit to engage in such service."

The policy allowed for additional benefits of $1,000 in the event the insured came to his death by accidental means, but under the heading: "Risks not assumed:" the contract read: "The Company shall not be liable for the additional Accidental Death Benefit specified above if said death shall result by reason of any of the following: (a)... (b)... (c)... (d) Military, air or naval service in time of war. (e) Any work in connection with actual warfare, voit, insurrection, police duties or any act incidental thereto, either on land or water...."

[ 373 Pa. Page 240]

On October 28, 1950, Andrew Beley, who had had some previous military experience, was recalled into active service and in due time sailed to embattled Korea where on March 7, 1951, he made the supreme sacrifice.

His mother submitted proofs of death to the insurance company which refused payment under the policy on the ground that her son's death came within the excepted provisions of the policy.

Mrs. Beley brought suit in assumpsit for $2,000. The company offered to return the premiums paid, which amounted to $152.60, and the Allegheny County Court entered judgment in favor of the plaintiff in that amount. The plaintiff appealed to the Superior Court where the judgment of the Allegheny County Court was reversed and entered in favor of the plaintiff in the full amount of the policy.

The insurance company has appealed to this Court, submitting for our consideration the following questions:

Did Andrew Beley come to his death while in military or naval service in time of war?

Was he at the time of his death engaged in military, air or naval service in time of war?

Was he engaged in any work in connection with actual warfare, riot, insurrection, police duties or any act incidental thereto, either on land or water?

In discussing the principles of law involved in this case, we must assert at once that to deny that the Korean military action is war in its popularly accepted meaning is to deny the evidence of one's senses. Courts normally take judicial notice of whatever is unquestioningly accepted by informed society as fact. A judge does not ask in court for proof that ice forms at the North Pole or that the World Series refers to a contest between baseball teams. Courts know that in Korea, armies are pitted against each other utilizing

[ 373 Pa. Page 241]

    every device known to modern warfare in the effort and determination to exterminate each other. We know determination to exterminate each other. We know this to be true because every medium of communication extant informs us that it is true. There is not one voice, one printed word, or one picture in the newspapers, radio broadcasts and television images which present themselves before our eyes or appeal to our ears that bespeaks anything to the contrary. In addition, judges have physically seen soldiers who have returned from Korea and have witnessed the evidence of their contact with forces which have inflicted wounds peculiarly the result of gunfire and cannon fire, the trademark of war.

Judges have seen, through the media of incontestible authenticity, photographic evidence of flagdraped caskets being returned by ship from the distant peninsula of Korea. Figures released by the United States Government, through official reports which the courts accept unless controverted (and there has been no denial anywhere of their accuracy), establish that our casualties in Korea have reached the dreadful total of more than 128,000, of which 22,519 represent deaths. Nothing can more graphically identify conflict as war than grave casualties of this awesome character.

And yet, the Spanish American war, which is accepted governmentally and historically and in every other manner as a full-scaled war, produced the relatively small number of 361 battle deaths and 2,565 deaths by disease. The total casualties reached, again comparatively, the small number of 4,506. The number of American troops engaged was 306,760.

However, even the loss of one life or none at all, if there be a solemn declaration of war, makes any military action, war. Congress is the only body in the United States which can declare war. The Korea conflict is a non-congressionally declared war. Does that

[ 373 Pa. Page 242]

    in itself make it legally different from a congressionally declared war? The answer to that question is the answer to the question posed in this lawsuit.

As early as 1800, the Supreme Court of the United States, in the case of Bas v. Tingy, 4 Dallas 35, 38, drew a distinction between a declared or solemn war and an undeclared or imperfect war: "It it be declared in form, it is called solemn, and is of the perfect kind; because one whole nation is at war with another whole nation; and all the members of the nation declaring war, are authorized to commit hostilities against all the members of the other, in every place, and under every circumstance. In such a war all the members act under a general authority, and all the rights and consequences of war attach to their condition.

"But hostilities may subsist between two nation, more confined in its nature and extent; being limited as to places, persons, and things; and this is more properly termed imperfect war; because not soleman, and because those who are authorized to commit hostilities, act under special authority, and can go no farther than to the extent of their commission."

In 1866 the Supreme Court of Texas, discussing the Civil War, said in Bishop v. Jones & Petty, 28 Tex. 294, 319: "War in its legal sense has been aptly defined to be 'the state of nations among whom there is an interruption of all pacific relations, and a general contestation of arms authorized by the sovereign.' It is true, it may and has frequently in latter times been commenced and carried on without either a notice or declaration. But still, there can be no war by its government, of which the court can take judicial knowledge, until there has been some act or declaration creating or recognizing its existence by that department of the government clothed with the war-making power."

War, as defined by Corpus Juris, must ...


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