Lynch v. National Life & Acc. Ins. Co., 29140
| Decision Date | 19 April 1955 |
| Docket Number | No. 29140,29140 |
| Citation | 278 S.W.2d 32 |
| Parties | Robert J. LYNCH (Plaintiff), Appellant, v. The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY, a Corporation (Defendant), Respondent. |
| Court | Missouri Court of Appeals |
Joseph Wall, and Arthur Kreisman, St. Louis, for appellant.
Thompson, Mitchell, Thompson & Douglas, and Harold I. Elbert, St. Louis, for respondent.
This is an appeal by plaintiff-appellant from an adverse judgment rendered by the trial court, a jury having been waived by the parties, in an action on a policy of insurance issued by the defendant-respondent.
The suit was instituted in the magistrate court, no pleading was filed by defendant to plaintiff's petition, and that court rendered a judgment in favor of plaintiff for the total sum of $900, $750 being the amount plaintiff claimed under the policy and $150 thereof being attorney's fee. From the judgment so rendered an appeal was taken to the circuit court, where the cause was submitted on a stipulation of facts and certain documentary evidence from which it appears:
Defendant issued policy No. 4525114003 on June 18, 1945, whereby, in consideration of the payment to it of a weekly premium of 18cents the defendant insured the life of plaintiff and obligated itself to pay at his death, to the named beneficiary, the sum of $500, provided the policy was at that time in force and effect. Under the contract the defendant was also required to pay to the insured during the continuance of the policy in force, a sum equal to one and one half times the amount of the aforesaid benefit in the event he suffered loss by severance of one foot at or above the ankle, provided 'that the Company shall not be liable for any benefit for loss of eyesight or limbs if the loss results from service in the military or naval forces of any country at war'. (Italics ours.)
On or about August 31, 1950, while serving in the United States Army in Korea, plaintiff was wounded in combat and as a result of the wound so received his right foot was amputated on June 12, 1951, at Fitzsimmons Army Hospital at Denver, Colorado. At the time the wound was sustained and on the date of said amputation the policy was in force and effect. The defendant waived necessary proof of loss and denied liability on the ground, 'that the company shall not be liable for any benefit for loss of eyesight or limbs if the loss results from service in the military or naval forces of any country at war' (policy provision), and that the loss of plaintiff's foot was occasioned by service in the military forces while this country was at war.
The sole question for determination by this court is: Was the Korean conflict a 'war' within the meaning of the exempting provision of the policy upon which the defendant relies to defeat the claim asserted by plaintiff? Plaintiff strenuously contends that, 'there can be a war only when the same is declared by Congress under its constitutional authority'; that inasmuch as there was never a formal declaration of war by the Congress we should, by the application of one of the principles relating to construction of contracts, interpret the policy to mean that the Korean conflict was not a war.
Specifically, plaintiff argues that an ambiguity exists in that portion of the policy under attack; that if the defendant intended to limit its liability because of the factual situation that concededly existed and which brought about plaintiff's disability, it should have 'placed a limitation on the word 'war' by adding the words 'declared' or 'undeclared' war or some such similar phrase of limitation'; that since the policy was prepared by defendant the ambiguity must be construed against it. In short, the plaintiff would have us place a highly technical meaning upon the term 'war' and hold that it means nothing less than a constitutionally declared war.
The rule is firmly established in Missouri that insurance policies, like other contracts, receive reasonable interpretations, and that in construing that terms of a policy the courts discharge their full duty when they ascertain and give effect to the intention of the parties, as disclosed by the contract they have entered into. Packard Mfg. Co. v. Indiana Lumbermens Mut. Ins. Co., 356 Mo. 687, 203 S.W.2d 415; Prange v. International Life Ins. Co. of St. Louis, 329 Mo. 651, 666, 46 S.W.2d 523, 526; 80 A.L.R. 950, 957; St. Louis Police Relief Ass'n v. Aetna Life Ins. Co., 236 Mo.App., 413, 154 S.W.2d 782, 787; Ray v. Mutual Benefit Healty & Accident Ass'n, Mo.App., 220 S.W.2d 622, 625, 626.
The principle that when the terms of an insurance contract are ambiguous, equivocal or uncertain so that the intention of the parties cannot be clearly ascertained by the ordinary rules of construction, the questionable terms are to be construed against the insurer and in favor of the insured, is equally well settled. Central Surety & Ins. Corp. v. New Amsterdam Cas. Co., 359 Mo. 430, 222 S.W.2d 76, 78; Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, loc. cit. 101, 102, 57 A.L.R. 615; Henderson v. Massachusetts Bonding & Ins. Co., 337 Mo. 1, 84 S.W.2d 922, loc. cit. 924; Chamberlain v. Mutual Ben. Health & Acc. Ass'n, Mo.App., 260 S.W.2d 790; 29 Am.Jur., Sec. 166.
A second principle auxiliary to the determination of intent is that plain and unambiguous language must be given its plain meaning. Packard Mfg. Co. v. Indiana Lumbermens Mut. Ins. Co., supra; Wendorff v. Missouri State Life Ins. Co., supra; State ex rel. Prudential Ins. Co. of America v. Shain, 344 Mo. 623, 127 S.W.2d 675, loc. cit. 676, in which Judge Douglas, speaking for the Court en Banc, said: And the courts are not authorized to pervert language or exercise inventive powers for the purpose of creating an ambiguity when none exists. Central Surety Ins. Corp. v. New Amsterdam Cas. Co., supra; Wendorff v. Missouri State Life Ins. Co., supra.
In light of the rule last expressed, can we say the phrase, 'military or naval forces of any country at war', and in particular the word 'war' appearing in said phrase, when given their plain and ordinary meaning, are so tainted with ambiguity that there is room for construction in which we must apply the rule of 'strictly against the insurer and liberally in favor of the insured?' We think not.
It is of course true that the United States Constitution, Article I, Section 8, provides the Congress has the power to declare war. However, logic dictates that a war in fact can exist absent a formal declaration by Congress, indeed the Supreme Court of the United States and courts of sister states have recognized that this country has engaged in war even though the Congress of the United States failed to make a declaration thereof. Before noting said authorities, we observe that definitions of was reflect the common understanding of war as war in fact.
In 56 American Jurisprudence, Section 2, page 133, war is thus defined:
Webster's definition is:
'The state or fact of exerting violence or force against another, now only against a state or other politically organized body; esp., a contest by force between two or more nations or states, carried on for any purpose; armed conflict of sovereign powers; declared and open hostilities.' Webster's New International Dictionary, Second Edition, Unabridged, page 2871.
In the decision by the Supreme Court of the United States in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 873, 96 L.Ed. 1153, decided June 2, 1952, Mr. Justice Jackson, in his concurring opinion, and in referring to the Korean conflict, said:
'Of course, a state of war may in fact exist without a formal declaration.'
A brief review of the transactions prior to the commencement of actual hostilities in Korea is necessary to an understanding of the acts which precipitated the conflict. On June 25, 1950, the United Nations Security Council adopted a resolution, noting with grave concern the armed attack upon the Republic of Korea by forces from North Korea; determined that such action constituted a breach of the peace and, among other things, called upon all members to render every assistance to the United Nations in the execution of the resolution. Two day later, June 27, 1950, another resolution was adopted by the same council recommending 'that the members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repeal the armed attack and to restore international peace and security in the area'.
The United States, a member of the United Nations, promptly furnished its vigorous support, and combatant activities continued without interruption to and including the date plaintiff herein received the injuries which eventually resulted in the loss of his foot, and such activities resulted in heavy casualties being inflicted upon the youth of our nation serving in said area, as hereinafter disclosed.
Notwithstanding that the conflict possessed all of the characteristics of a war in fact as hereinafter more forcibly demonstrated, plaint...
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