Christensen v. Sterling Ins. Co.

• Decision Date: 26 May 1955
• Docket Number: No. 32959,32959
• Court: Washington Supreme Court
• Parties: Martin CHRISTENSEN, Appellant, v. STERLING INSURANCE COMPANY, Respondent.

Page 713

46 Wn.2d 713

284 P.2d 287

Martin CHRISTENSEN, Appellant, v. STERLING INSURANCE COMPANY, Respondent.

No. 32959.

Supreme Court of Washington, Department 2.

May 26, 1955.

Rehearing Denied June 20, 1955.

John W. Fishburne, Willard Hedlund Tacoma, for appellant.

Burkey, Burkey & Marsico, Tacoma, for respondent.

WEAVER, Justice.

Was the United States a 'country at war' on May 11, 1952 (during the Korean conflict), within the meaning of the terms of a life insurance policy?

The answer is to be found within the scope and meaning of the word 'war.' Is it to be construed in its legal or technical sense, or is it to be given its ordinary meaning as used in common speech?

Such construction becomes important in four distinct situations which concern an insured in military service:

First: Where death occurs prior to the formal declaration of war, as, for example, during the attack on Pearl Harbor, December 7, 1941; the official declaration of war by Congress being made the following day.

Second: Where death occurs while the armed forces of the country are engaged in combat in which a formal declaration of war never was made.

Third: Where death occurs after the cessation of hostilities in a formally declared war, but before the war is officially ended.

Fourth: Where death occurs after the cessation of hostilities in an armed conflict in which a formal declaration of war never was made.

We are concerned, in this case, with a factual situation arising under the second category.

The insured died as a result of an automobile accident in Alaska, on May 11, 1952, while he was serving in the military service of the United States.

The life insurance policy, on which this action by the beneficiary is based, contains a 'war service' clause that provides:

'If the Insured shall die from any cause while in Military, Naval or Air Service of any country at war * * * Company shall be liable only for a refund of the premiums paid, or the reserve * * * whichever is greater. * * *' (Italics ours.)

Prior to this action, defendant insurer refunded the premiums paid, since they were greater than the policy reserve. Defendant denied further liability for the reason that death of the insured was within the terms of the war service clause.

Plaintiff appeals from a judgment dismissing the action with prejudice.

Based upon a stipulation of counsel and facts which the court judicially noticed, it appears: that the Congress of the United States did not, at any time, make a formal declaration of war against the government of North Korea nor against any of its allies; that certain nations, including the United States, had adopted the 'Charter of the United Nations'; that the United States was 'obligated to join * * * in carrying out the measures decided upon by the Security Council' of the United Nations; that the Security Council requested 'members of the United Nations to furnish the necessary assistance to repel the armed attack and restore international peace' in Korea; that armed forces of the United States were dispatched to Korea by direction of the President, and that, prior to and on the date of the death of the insured (May 11, 1952), the 'armed forces of the United States, including all divisions of the service, were engaged in actual armed combat with the military troops of North Korea' and troops from China; that the government of the United States stated officially that, as of May 9, 1952 (two days prior to insured's death), the United States had suffered 108,413 casualties, of which 19,096 had been killed in combat in the Korean conflict.

Plaintiff relies on those cases that have construed the word 'war,' as used in life insurance contracts, in its strict, constitutional sense. These cases hold that an armed conflict is not a war, in the legal or constitutional sense, in the absence of a declaration of war by the Congress of the United States. Beley v. Pennsylvania Mutual Life Ins. Co., 373 Pa. 231, 95 A.2d 202, 36 A.L.R.2d 996, certiorari denied 1953, 346 U.S. 820, 74 S.Ct. 34, 98 L.Ed. 346 (Insured killed in Korea.); Harding v. Pennsylvania Mutual Life Ins. Co., 1953, 373 Pa. 270, 95 A.2d 221 (Insured killed September 11, 1950, in train wreck on way to military camp.); Rosenau v. Idaho Mutual Benefit Ass'n, 1944, 65 Idaho 408, 145 [284 P.2d 289] P.2d 227 (Insured killed at Pearl Harbor.); West v. Palmetto State Life Ins. Co., 1943, 202 S.C. 422, 25 S.E.2d 475, 145 A.L.R. 1461 (Insured killed at Pearl Harbor.); Savage v. Sun Life Assurance Co. of Canada, D.C.La., 1944, 57 F.Supp. 620 (Insured killed at Pearl Harbor.)

These decisions are based, in part, on the rule that a court cannot take judicial notice of the existence of a war until a formal declaration has been made by the proper department of the Federal government.

Other courts, in construing similar clauses, have held that in private matters, unaffected by a public interest, the courts are free to take judicial notice of the existence of a war although no formal declaration of war has been made by the Federal government. Western Reserve Life Ins. Co. v. Meadows, 1953, 152 Tex. 559, 261 S.W.2d 554 (Insured killed in Alaska during Korean conflict.); Langlas v. Iowa Life Ins. Co., Iowa 1954, 63 N.W.2d 885 (Insured killed in Korea.)...