Savage v. Sun Life Assur. Co. of Canada

• Decision Date: 10 November 1944
• Docket Number: Civil Action No. 942.
• Citation: 57 F. Supp. 620
• Parties: SAVAGE v. SUN LIFE ASSUR. CO. OF CANADA.
• Court: U.S. District Court — Western District of Louisiana

57 F. Supp. 620

SAVAGE v. SUN LIFE ASSUR. CO. OF CANADA.

Civil Action No. 942.

District Court, W. D. Louisiana, Monroe Division.

November 10, 1944.

Shotwell & Brown, of Monroe, La., for plaintiff.

Montgomery, Fenner & Brown, of New Orleans, La., and R. M. Bernstein, of Philadelphia, Pa., for defendant.

DAWKINS, District Judge.

Plaintiff's suit is upon a life insurance policy of the face value of $2500, but double that amount or $5000 is claimed, on the basis of alleged accidental death by external and violent means. Defendant admitted its liability in the face amount but denied the right to recover the additional $2500, for the reason that the death of the insured was caused by the bombing of Pearl Harbor on December 7, 1941, thus creating a condition of war and relieving insurer from the duty of paying double indemnity under the terms of the policy.

The facts have been stipulated to the effect that the policy was issued and in force; that while serving as an ensign in the United States Navy, the insured was killed by the attack of the Japanese at Pearl Harbor on December 7, 1941; that proof and demand had been made; that defendant had offered to pay the sum of $2500 "in full settlement of the face value of the policy" without prejudice, but this had been declined; and that war was formally declared by the United States against the Japanese on December 8, 1941.

The case, therefore, involves only a question of law, that is, the proper construction and application of certain provisions of the policy. After stipulating for the payment of an additional amount equal to its face for death "caused solely by external, violent and accidental means," the policy excluded among other things, "death resulting from war or any act incident thereto."

The issue, under the agreed statement of facts, is: did death result "from war or any act incident thereto"?

Plaintiff's contention, of course, is that there was no war until it was formally declared by Congress, who, under the Constitution, has the sole authority to declare a state of war. While, on the other hand, defendant insists that war existed from the moment the attack started and the first gun was fired or bomb dropped.

Three other cases arising out of the sneak attack by the Japanese upon Pearl Harbor have been decided, one each in the state courts of South Carolina and Idaho (West v. Palmetto State Life Ins. Co., 202 S.C. 422, 25 S.E.2d 475, 145 A.L.R. 1461; and Rosenau v. Idaho Mutual Benefit Ass'n, Idaho, 145 P.2d 227); and the third by the Circuit Court for the Territory of Hawaii, at law (17,175, handed down on August 2, 1944). The first two, construing similar provisions, allowed recovery, while the third, under practically identical provisions of the policy, denied it.

There can be no doubt that the attack by the Japanese Navy and its...