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March 25, 1957


Appeal, No. 157, March T., 1956, from judgment of Court of Common Pleas of Allegheny County, April T., 1955, No. 3212, in case of Francis R. Thomas, Sr. v. Metropolitan Life Insurance Company. Judgment affirmed; reargument refused April 17, 1957.


Samuel J. Goldstein, with him Herbert R. Jacobson, for appellant.

William H. Eckert, with him Alexander Black and Smith, Buchanan, Ingersoll, Rodewald & Eckert, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

[ 388 Pa. Page 501]


We are in accord with the determination of this action in assumpsit and the judgment entered in favor of the defendant is affirmed on the following portion of the able opinion of Judge LEWIS:

"This matter comes before the court en banc on the plaintiff's motion for judgment on an agreed set of facts.

" The defendant company issued a life insurance policy in the face amount of $5,000 on the life of Francis R. Thomas, Jr., effective February 28, 1948.

"His father, Francis R. Thomas, Sr., plaintiff in this action, was named beneficiary.

"The policy contained an accidental death benefit clause providing for an additional $5,000 payment ('... upon receipt at the Home Office of due proof of death of the Insured, while this provision is in effect, as the result, directly and independently of all other causes, of bodily injuries caused solely by external, violent, and accidental means, and that such death shall not have occurred ... as a result of an act of war.')

"The facts disclose that the Insured became a private in the United States Marine Corps and was killed in Korea on October 27, 1952, while he was attempting to single-handedly storm a series of bunkers and trenches occupied by enemy troops. His immediate death was brought about by being struck with an enemy hand grenade.

"On receiving proof of death of the Insured, the defendant company paid the face amount of the policy, but they refused to pay double indemnity, because they contended that the Insured was killed 'as a result of an act of war.'

"The plaintiff contends the Insured was not killed by an 'act of war' because no war existed between the United States and any other nation. While the plaintiff's

[ 388 Pa. Page 502]

    counsel admits that the struggle in Korea involved armed conflict between a group of nations, yet he argues it could not be considered a war, because the United States had not formally declared war on the North Koreans or the Chinese Communists.

"In support of this argument, the plaintiff cites the recent case of Julia Beley v. Pennsylvania Mutual Life Insurance Company, a Corporation, 373 Pa. 231.

"We must first determine then what we mean by the term 'war'.

"While the generally accepted meaning of the word 'war' is an armed conflict between two nations, according to the various opinions handed down by the many courts throughout the land, the legal interpretation of the word 'war' is not as simple as it would seem. Beginning with the earliest cases, there has been a marked conflict, not only between the different courts, but between judges of the same court, as to the legal interpretation of the word 'war'.

"In our own state of Pennsylvania, in the Julia Beley case, supra, four justices interpreted 'war' to mean one thing and two others gave it an entirely different meaning.

"This difference of opinion is largely due to the fact that the courts from the earliest days recognized that wars fall into one of two classifications. They are either declared or undeclared.

"In the case of Bas v. Tingy, Supreme Court, 1800, 4 Dallas 37, which is one of the earliest cases on the subject, the court points out there may be two kinds of wars which a nation might become engaged in: - a declared or solemn war, or an undeclared or imperfect war.

"The Court, in discussing the definition of the word 'war', said: 'It may, I believe, be safely laid down, that every contention by force between two nations, in external

[ 388 Pa. Page 503]

    matters, under the authority of their respective governments, is not only war, but public war. If it be declared in form, it is called solemn, and is of the perfect kind; because one whole nation is at war with another; 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 circumstances. In such a war all members act under a general authority and all the rights and consequences of war attach to their condition.'

'But hostilities may subsist between two nations more confined in their nature and extent; being limited as to places, persons and things; and this is more properly termed imperfect war; because not solemn, 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. Still, however, it is public war, because it is an external contention by force, between some of the members of the two nations, authorized by the legitimate powers. It is war between the two nations, though all the members are not authorized to commit hostilities such as in a solemn war, where the government restrains the general power.'

"The Eliza Ann case, 1 Dodson 244, decided in the High Court of Admirality, Great Britain in 1833, stands for the proposition that there may be a war between two countries without having a declaration on either side.

"In the famous Prize Cases, United States Supreme Court, 1862, 2 Black 635, arising out of the Civil War, the majority opinion concurred in by five justices stated that the Civil War was a war and the belligerents engaged in actual warfare were entitled to have their rights protected under International Law even though the Government of the United States had not declared war.

[ 388 Pa. Page 504]

"The majority opinion stated: 'A civil war is never solemnly declared; it becomes such by its accidents - the number, power and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war.'

"The minority opinion in which four justices concurred stated: 'But before this insurrection against established government can be dealt with on a footing of civil war, within the meaning of the law of nations and the Constitution of the United States and which will draw after it belligerent rights it must be recognized or declared by the war making power of the government. No power short of this can change the legal status of the government or the relations of its citizens from that of peace to a state of war, or bring into existence all those duties and obligations of neutral third parties growing out of a state of war.'

"In the case of Hamilton v. McClaughry, 136 Fed. 445, the court held that the Boxer Rebellion in 1900 was a war, although history books have continually referred to it as a rebellion. The court said that a war can be entered into by a sovereign or between sovereign nations without the necessity of a formal declaration.

"In the case of Arce v. State, 202 S.W. 951, the Criminal Court of Appeals of Taxes held that the controversy between the United States and Mexico in 1916 constituted war although war had not been declared. The court said: 'While the invasion of Mexico by Gen. Pershing's column was not a public or complete war, or not preceded by a declaration of war against Mexico by the United States, it was an act of war and under

[ 388 Pa. Page 505]

    the definitions given by Gen. Crowder and the authorities generally it was technically and within the limited meaning of the word "war".' (Emphasis supplied)

"One of the later cases on the subject and which is considered one of the leading cases is the case of New York Life Insurance Company v. Bennion, 158 F.2nd 260. In that case, the insured was in command of the Battleship West Virginia and was killed at his post of duty during the Japanese attack of December 7, 1941 at Pearl Harbor.

"The New York Life Insurance Company had a life insurance policy on the insured with double indemnity for accidental death to the insured, but excluded from its coverage death resulting from war or any act incidental thereto.

"The company denied liability for double indemnity arguing that whether a country was engaged in war is a question of fact, not to be determined by what Congress has done or not done, but by the fact of whether or not the country was engaged in a shooting war.

"The Circuit Court of Appeals upheld this contention and stated the exemption was applicable on the ground that war in the grim sense of reality did exist on December 7, 1941 at Pearl Harbor and the parties must have intended such effect from the exclusion clause.

"There was a strong dissenting opinion filed in this case ...

"While we have seen that some of our cases have held that war may exist without a declaration by Congress, a great number of cases have held that the judicial can only take cognizance of authoritative acts of the political or legislative with respect to war. These cases hold it is not for the courts to determine whether or not a war exists by judicial legislation.

[ 388 Pa. Page 506]

"One of the cases that clearly states this view and which has been quoted many times by other courts is the case of Bishop v. Jones, 28 Texas 294. The Court at page 319 states as follows: '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 the department of the government clothed with war making power.'

"It was also stated in the same case: 'War does not exist merely on the suspension of the usual relations of peace. Commerce may be interdicted without producing it. Reprisals and embargoes are forcible measures of redress, but do not per se constitute war. Hostile attacks and armed invasions of the territory or jurisdiction of a nation accompanied by the destruction of life and property by officers acting under the sanction and authority of their government however great and flagrant provocation to war are often atoned for and adjusted without it ensuing.'

"This same reasoning was used by the courts in the following cases:

"Rosenau v. Idaho Mutual Beneficial Association, 145 Pac. 227, although there again there was a very strong dissenting opinion filed in which two judges took the opposite view of the interpretation of the word war; West v. Palmetto State Life Insurance Company, 35 S.E.2nd 475; Pang v. Sun Life Assurance Company, 14 C.C.H. Life Reports 496; 37 Hawaiian Reports 208; Savage v. Sun Life Assurance Company of

[ 388 Pa. Page 507]

    supra, on which the plaintiff relies, while contending that 'war' as used in the policy means a formally declared war by Congress, recognized the fact, however, that there are two kinds of wars, declared and undeclared.

"In permitting a recovery on the policy in the Beley case, for the death of the insured in Korea while a member of the armed forces, for the face amount of the policy and double indemnity, under a policy which contained a clause limiting recovery to the return of premiums if the insured engaged in military or naval service in the time of war, the court said: 'The action being waged in Korea is not a "war" within what may be termed the constitutional or legal sense of that term.'

"It is apparent from reading the opinion of the majority that the court recognized the fact that there were two kinds of war but in interpreting the language contained in the insurance policy they decided that it must be given its constitutional or legal meaning or otherwise the court would be utterly at sea whenever a question arose as to whether certain expeditions in which the United States forces were engaged constituted a war.

"The court concluded in the Beley case that if the insurance company intended that 'war' should have a broader connotation that its constitutional or legal intendment, it merely had to add to the term 'war' in the contract, 'declared or undeclared'.

"Since the Beley case, supra, and its companion case, Harding v. Pennsylvania Mutual Life Insurance Company, 373 Pa. 270, 171 Pa. Super. Ct. 236, were decided, similar cases in other jurisdictions have been decided, which held that the conflict in Korea was a war within the meaning of an insurance clause excluding death from war. Western Reserve Life Insurance

[ 388 Pa. Page 509]

"It is our opinion that the reasoning of the Supreme Court in the Beley and Harding cases, supra, was not only logical and clear, but the result just.

"Furthermore, we are bound by the decision and must accept the term 'war' in its constitutional and legal sense to mean a formally declared war by the authorities authorized to declare war, unless it has been so characterized to impart an entirely different meaning.

"In the instant case, however, the plaintiff's right of recovery rises or falls on the legal interpretation of the phrase, 'act of war'. If the Insured came to his death as a result of an 'act of war', plaintiff beneficiary cannot recover in the instant case.

"If the term 'act of war' is also an ambiguous term and has two or more meanings, it would have to be interpreted most strongly against the defendant insurance company, who drew the contract. Ebbert v. Philadelphia Electric Co., 330 Pa. 257.

"The plaintiff contends the phrase, 'act of war', as referred to in the policy, refers to an act pertaining to a formally declared war, and as the Supreme Court in the Beley case has decided the Korean conflict was not a war, not being formally declared, the clause excluding recovery by reason of death caused by an act of war, does not prevent recovery in this case.

"It is our opinion, however, that the term 'act of war' is not an ambiguous term. It has been used many times in connection with the description of an attack by the armed forces of one nation against the armed forces of another. It has been used in connection with the attack by the armed forces of one nation against the civilians of another; and it has been used in connection with the invasion of the territory of one nation by the armed forces of another.

[ 388 Pa. Page 511]

"These hostile attacks may occur without war being declared formally or informally, and without either country recognizing the existence of a state of war.

"As was stated in the early case of Bishop v. Jones, 28 Texas 294: 'Hostile attacks and armed invasions of the territory or jurisdiction of a nation accompanied by the destruction of life and property by officers acting under the sanction and authority of their government however great and flagrant provocation to war are often atoned for and adjusted without it ensuing.'

"Hostile attacks of this kind from time immemorial have been referred to as 'acts of war'. They are acts, which, under International Law, would justify the nation, whose citizens or armed forces were attacked, or whose territory was invaded, in declaring war on the aggressor nation.

"In Moore's Digest of International Law, we find the following quotations: 'Much confusion may be avoided by bearing in mind the fact that by the term war is meant not the mere employment of force, but the existence of the legal condition of things in which rights are or may be prosecuted by force. Thus, if two nations declare war one against the other, war exists, though no force whatever may as yet have been employed. On the other hand, force may be employed by one nation against another, as in the case of reprisals, and yet no state of war may arise. In such a case there may be said to be an act of war, but no state of war. The distinction is of the first importance, since, from the moment when a state of war supervenes third parties become subject to the performance of the duties of neutrality as well as to all the inconveniences that result from the exercise of belligerent rights.'

"It was held by the Criminal Court of Appeals of Texas in Arce et al. v. State, supra, that although there was no declaration ...

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