New York Life Ins. Co. v. Durham

• Citation: 166 F.2d 874
• Decision Date: 04 March 1948
• Docket Number: No. 3564.,3564.
• Parties: NEW YORK LIFE INS. CO. v. DURHAM.
• Court: U.S. Court of Appeals — Tenth Circuit

166 F.2d 874 (1948)

NEW YORK LIFE INS. CO. v. DURHAM.

No. 3564.

Circuit Court of Appeals, Tenth Circuit.

March 4, 1948.

George A. Critchlow, of Salt Lake City, Utah (Walter M. Critchlow, of Salt Lake City, Utah and Ronald B. Swinford and Harry J. McCallion, both of New York City, on the brief), for appellant.

Harold Cline, of Milford, Utah (Albert M. Marsden, of Parawan, Utah and Elias Hansen, of Salt Lake City, Utah, on the brief), for appellees.

Before PHILLIPS, BRATTON and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

On December 1, 1943, the New York Life Insurance Company issued its policy of insurance on the life of Lewis Durham in the sum of $5,234.00, conditioned that the amount payable should be the restricted amount (as therein defined) if the death of insured should occur "outside the home areas while the insured is in the military or naval forces of any country engaged in war. * * * `war' includes undeclared war."

On September 25, 1945, while the policy was in full force and effect, and insured was in the military forces of the United States, he died outside the home areas from wholly non-military causes. The Insurance Company tendered the restricted amount in the sum of $233.92, but denied liability for the face amount of the policy on the grounds that when death occurred the insured was outside the home areas in the military forces of a "country engaged in war".

In this suit by the beneficiary to recover the face amount of the policy, the sole question is whether on September 25, 1945, after the surrender of the Germans and Japanese this country was engaged in war. The Trial Court gave judgment for the beneficiary and the Insurance Company has appealed.

The facts are not in dispute. On the date of insured's death all of the enemies of the United States in World War Two, had unconditionally surrendered, but there had been no declaration, proclamation or official act of the executive or legislative departments of the Government declaring, proclaiming, or otherwise announcing the formal termination of the existence of a state of war. On the contrary, it was not until December 31, 1946, that the president of the United States publicly stated: "Although a state of war still exists, it is at this time possible to declare, and I find it in the public interest to declare, that hostilities have terminated". 12 Fed.Reg. 1.

This being true, it is contended that whether on September 25, 1945, the United States was a country engaged in war, is a political question solely for the determination of the political departments of our Government. And, there having been a political determination that the country was engaged in war, the Courts are conclusively bound by that determination until the political departments of our Government officially declare that the country no longer is engaged in war. In that connection, we are reminded that the exempting clause of the insurance contract is a "status clause" and not a "result clause", according to which coverage under the policy depends not upon the cause of death, but upon the status of the country when death occurred.

Of course, Courts do not declare war or make peace. The existence of war and restoration of peace are determined solely by the political departments of our Government, and such determinations are conclusively binding upon the Courts in all matters of state or public concern, and war having been declared, its existence must be recognized by the Courts until peace is proclaimed, although actual warfare may have ceased. Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 40 S. Ct. 106, 64 L.Ed. 194; Hijo v. United States, 194 U.S. 315, 24 S.Ct. 727, 48 L.Ed. 994; Palmer v. Pokorny, 217 Mich. 284, 186 N.W. 505; Kneeland-Bigelow Co. v. Michigan Cent. R. Co., 207 Mich. 546, 174 N.W. 605. In deciding judicial questions concerning the commencement or termination of a state of war, the Courts are generally required to refer to some public act of the political departments of the Government. See The Protector, 79 U.S. 700, 12 Wall. 700, 20 L.Ed. 463; United States v. Anderson, 76 U.S. 56, 9 Wall. 56, 19 L.Ed. 615. Furthermore, private rights, when affected by the incidence of war, are governed by such political determinations and the Courts will usually condition private rights, whether resting in contract or otherwise, in order to give full effect to the exigencies of war. See Hamilton v. Kentucky Distilleries Co., supra; United States ex rel. Hack v. Clark, 7 Cir., 159 F.2d 552; Citizens Protective...