Shneiderman v. Metropolitan Cas. Co. of N.Y.

• Decision Date: 09 November 1961
• Citation: 14 A.D.2d 284,220 N.Y.S.2d 947
• Parties: Eileen SHNEIDERMAN, Plaintiff, v. METROPOLITAN CASUALTY COMPANY OF NEW YORK, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 947

220 N.Y.S.2d 947

14 A.D.2d 284

Eileen SHNEIDERMAN, Plaintiff, v. METROPOLITAN CASUALTY COMPANY OF NEW YORK, Defendant.

Supreme Court, Appellate Division, First Department.

Nov. 9, 1961.

Herman V. Traub, New York City (Ernest Walton, New York City, with him on the brief), for plaintiff.

Benjamin H. Eisen, Brooklyn, of counsel (Martin A. Crean, New York City), for defendant.

Before VALENTE, J. P., and McNALLY, STEVENS, EAGER and STEUER, JJ.

EAGER, Justice.

This is a submission of a controversy on agreed statement of facts pursuant to §§ 546 to 548 of the Civil Practice Act. Involved is the right of the plaintiff to recover the death benefit under a special disability insurance policy issued by defendant to David Seymour on February 1, 1953. The policy provided inter alia for payment of the principal sum of $5,000 to plaintiff, as the designated beneficiary, for loss of life of the insured resulting from accidental bodily injury. The policy, however, contained the express exclusory provision that 'This insurance does not cover death * * * caused by war or any act of war or sustained by the Insured while in the military or naval service of any country at war, and in the latter event the pro rata unearned premium will be returned to the Insured.'

At the time of the issuance of the said policy, the insured, David Seymour, was by occupation a photographer-journalist and he continued in such occupation until time of death. He was killed on November 10, 1956 at El Quantara in the Suez Canal zone while engaged on a photographic journalistic assignment.

In October, 1956, prior to the death of the insured, war, with extensive military and naval action, had been commenced by the British, Israeli and French governments against the Egyptian government to seize control of the Suez Canal. Following the hostilities between the British, Israeli and French governments on the one hand and the Egyptian government on the other hand, an agreement to cease fire effective November 6, 1956 was entered into by these nations.

The insured's death on November 10, 1956, occurred following the agreement to cease fire. The insured, at time of death, was attempting to cross from the British-French lines to the Egyptian side with a party exchanging wounded. The insured and a French photographer were traveling with the party in a jeep. They were killed when they were fired upon by the Egyptians and their jeep plunged into a nearby canal. Upon the foregoing facts, which are agreed, the question is, was the death of the insured 'caused by war or any act of war' within the meaning of the exclusory provisions of the policy.

The position of the defendant insurance company is that, at the time of the insured's death, war or a state of war existed between Great Britain, France and Israel on the one side and Egypt on the other side. If this be so, it would follow that the insured's death was an incident thereof and, therefore, not covered by the policy. On the other hand, if the war, within the meaning of the term as used in the policy, had ended, then, for reasons hereinafter set out, it would appear that there was coverage.

By the statement of facts, the parties have stipulated that 'An agreement to cease fire, effective November 6, 1956, was entered into by the parties.' This was in pursuance of arrangements under a resolution of the General Assembly of the United Nations. It is significant that, following this cease fire on November 6, 1956, the warring nations did not thereafter engage in maneuvers or hostilities for the purpose of gaining military or naval advantage. Such incidents of violence or minor fighting as did thereafter occur were not in the furtherance of the prosecution of the war as such.

That a war may be terminated by the actual cessation of hostilities is recognized by authorities in international law and by judicial decision. While it is written in text books that a regular or normal way of ending a war is by a treaty of peace or by conquest and annexation, it is conceded by the authors that actual cessation of hostilities pending peace preliminaries may mark the ending of a war. Wheaton's International Law, 'War' (7th Ed.), p. 615; Oppenheim's International Law, 'Disputes, War and Neutrality' (7th Ed.), Ch. VII, § 262, p. 597. Where, as here, the agreement by warring nations to cease fire was with the view toward the final termination of hostilities, it was an agreement to end a war. Thereupon, there was a termination in fact of overt and organized hostilities in furtherance of the war. The period following was a period for settlement of disputes by negotiation as distinguished from a period of war. The war in fact was then ended and the absence of a formal peace treaty is of no significance. In truth, the resolution of the United Nations is to be considered here as having the same effect of terminating the war and restoring peace as a traditional treaty of peace.

The defendant, however, points particularly to the continuance of sporadic raids and miscellaneous fighting along the Israeli border occurring from time of time, and argues that, in reality Israel and Egypt were at war or in a state of war continuing from the time of the declaration of independence by Israel in 1948 to the present time. The insured's death, however, was not an incident of any such alleged state of war. As a matter of fact, his death did not occur in the Israeli-Egyptian zone but rather in the Anglo-French-Egyptian zone. Immaterial here, therefore, are the incidents of violence between Israel and Egypt which were unconnected with the war in the Suez Canal zone and which, in any event, did not cause the death of the insured.

Of course, our ultimate aim here is to find and give effect to the intention of the parties in contracting for exclusion from coverage for death 'caused by war or any act of war'. The words used are to be taken and read in their plain and ordinary sense. 'Such meaning must be given to the terms used as would be ascribed to them by the average man in applying for insurance and reading the language of the policy at the time it was written. Lewis v. Ocean Acc. & G. Corp., 224 N.Y. 18, 21, 120 N.E. 56, 57, 7 A.L.R. 1129; Silverstein v. Metropolitan Life Ins. Co., supra. [254 N.Y. 81, 171 N.E. 914;]' McGrail v. Equitable Life Assurance Society of United States, 292 N.Y. 419, 424, 55 N.E.2d 483, 486.

We are to take cognizance of the fact that an insurance policy is generally a contract with the average man who presumably is unfamiliar with the existence of a state of war from the strictly political, military and/or legal standpoint. Such a man would read the term war in a policy exclusory clause in the sense that the term is commonly used and understood in the every day expression rather than as used and understood in international relations or military affairs. Thus '[t]he common understanding of the meaning of 'war,' as related to its likelihood to be the cause of death, and the interpretations given to the usage of such a term in the current of judicial history, would be controlling.' Vanderbilt v. Travelers' Ins. Co., 112 Misc. 248, 250, 184 N.Y.S. 54, 55, aff'd, 202 App.Div. 738, 194 N.Y.S. 986, aff'd, 235 N.Y. 514, 139 N.E. 715.

'War, in the practical and realistic sense in which it is commonly used, refers to the period of hostilities and not to a technical state of war which may exist after the fighting has ended. New York Life Ins. Co. v. Durham, supra, 10 Cir., 166 F.2d 874, 876; Stinson v. New York Life Ins. Co., supra, App.D.C., 167 F.2d 233, 238, 239; Kaiser v. Hopkins, supra, 6 Cal.2d 537, 58 P.2d 1278, 1279.' Darnall v. Day, 240 Iowa 665, 671, 37 N.W.2d 277, 280. So, '* * * the plain, ordinary and generally accepted meaning of the word 'war' is war in fact.' Wilkinson v. Equitable Life Assur. Soc., 2 Misc.2d 249, 252, 151 N.Y.S.2d 1018, 1022. In the mind of the ordinary or average man, a war is considered at an end on the final cessation of hostilities following an armistice or cease fire looking toward complete peace. For example, a common expression, when the fighting stops, heard in the street or seen in the headlines, is the 'War is over'.

Consequently, in connection with the interpretation of private contracts, the courts have treated the actual cessation of hostilities as synonymous with the cessation of war. 2 Oppenheim, supra, p. 547. See also Jones v. Schneer, 270 App.Div. 1027, 63 N.Y.S.2d 627; Malbone Garage v. Minkin, 272 App.Div. 109, 72 N.Y.S.2d 327, aff'd 297 N.Y. 677, 76 N.E.2d 331; Michael Tuck Foundation v. Hazelcorn, 187 Misc. 954, 65 N.Y.S.2d 387, aff'd, 188 Misc. 1046, 71 N.Y.S.2d 732; Zinno v. Marsh, 30 Misc.2d 171, 36 N.Y.S.2d 866. Therefore, the term war when used in an exclusory clause of an insurance policy is generally construed as referring to the period of actual hostilities, that is, in the absence of context plainly having the effect of broadening the term beyond such limits. N. Y. Life Ins. Co. v. Bennion, 10th Cir., 158 F.2d 260, cert. denied, 331 U.S. 811, 67 S.Ct. 1202, 91 L.Ed. 1831; New York Life Ins. Co. v. Durham, supra; Stinson v. N. Y. Life Ins. Co., supra; Beley v. Penn. Mutual Life Ins. Co., 373 Pa. 231, 95 A.2d 202, 36 A.L.R.2d 966; Nat. Life and Acc. Inc. Co. v. Leverett, Tex.Civ.App., 215 S.W.2d 939.

Moreover, in limiting the meaning of the terms 'war' and 'act of war' as used in the exclusory clause to the meaning of war in its real and practical sense, we are giving effect to the apparent intention of the parties. The usual purpose of exclusory...