Stanbery v. Aetna Life Ins. Co.

• Decision Date: 29 June 1953
• Docket Number: No. L--7299,L--7299
• Citation: 26 N.J.Super. 498,98 A.2d 134
• Parties: STANBERY v. AETNA LIFE INS. CO.
• Court: New Jersey Superior Court

Page 498

26 N.J.Super. 498

98 A.2d 134

STANBERY v. AETNA LIFE INS. CO.

No. L--7299.

Superior Court of New Jersey Law Division.

June 29, 1953.

Albert S. Gross, Hackensack, attorney for the plaintiff.

Emory, Langan & Lamb, Jersey City, attorneys for defendant (Raymond J. Lamb, Jersey City, and Berkeley Cox, Connecticut bar, Hartford, Conn., of counsel; Samuel M. Lyon, Jr., No. Arlington, on the brief).

LEYDEN, J.S.C.

This action, to recover double indemnity benefits under a policy of life insurance, was submitted to the court for determination on an agreed stipulation of facts.

On October 24, 1936 plaintiff's decedent, William H. Stanbery, then a clerk employed in the ticket office and baggage room of the L. & N.R.R. Depot, Etowah, Tennessee, entered into a life insurance contract with the Aetna Life Insurance Company, in the face amount of $1,000 for an annual premium of $23.37. The beneficiaries originally named were the parents of the insured. Subsequently Stanbery substituted his wife, Shirley V. Stanbery, the plaintiff, as the beneficiary.

In consideration of an additional annual premium of 77 cents, defendant further agreed:

'If the death of the insured occurs before default in payment of premium and before the first anniversary of the date of this policy which follows the sixty-fifth anniversary of the insured's birth, and if such death results directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means and occurs within ninety days from the date of such accident, and if such injuries are evidenced by a visible contusion or wound on the exterior of the body (except in the case of drowning and internal injuries revealed by an autopsy), and if such death does not result from suicide while sane or insane, from military or naval service in time of war, from an aeronautic flight or submarine descent, from the taking of poison or inhaling of gas whether voluntary or otherwise, nor directly or indirectly from disease in any form, then the Company will immediately pay a sum equal to the sum described in this policy as the sum insured in addition to the insurance under this policy.

'The Company shall have the right and opportunity to investigate the circumstances of death, to examine the body and, if not prohibited by law, to make an autopsy.'

After the issuance of said policy the insured entered the military service of the United States. on March 27, 1952, while serving as a captain in the United States Army in Korea, he was accidentally killed by a mine explosion while on reconnaissance for a company camp site.

Upon being notified of his death in Korea plaintiff made application for payment under said policy. The defendant paid her the sum of $1,001.36, being the face amount of the policy, with interest. Plaintiff made demand for further payment under the double indemnity provision, which demand defendant refused on the ground that insured's death resulted from military service in time of war within the intent and meaning of the exclusions contained in said provision. Hence this action, wherein the plaintiff seeks as damages the sum of $1,000, with interest from the 27th day of March 1952.

The interpretation of the so-called 'war clauses' has given rise to much litigation both within and without our State. The cases construing these clauses in life insurance policies seem to fall into two categories: (1) 'result clauses,' which exclude from coverage death which results from military service in time of war; and (2) 'status clauses,' which exclude from coverage death from all causes while in military service in time of war. With this distinction we are not concerned as it is admitted that Stanbery's death resulted from military service. The question for determination is whether Stanbery died 'in time of war' within the intent and meaning of the contracting parties as expressed in the insurance policy.

Some of our sister states hold to the view that insurance policies are Sui generis, and the principles of law applicable to the interpretation of ordinary contracts do not apply. Our courts have consistently refused to adopt this view.

A policy of insurance is simply a contract, and its provisions should be interpreted as in any other contract, Caruso v. John Hancock, etc., Insurance Co., 136 N.J.L. 597, 57 A.2d 359 (E. & A.1948), and enforced in accordance with its plain provisions. Precipio v. Insurance Company of Pennsylvania, 103 N.J.L. 589, 137 A. 549 (E. & A.1927); Vozne v. Springfield Fire, etc., Insurance Co., 115 N.J.L. 449, 180 A. 852 (E. & A.1935).

The basic rule of construction of contracts is to ascertain and determine the intention of the parties as of the time of the making of the contract as expressed by the language employed when read and considered as a whole. Verhagen v. Platt, 1 N.J. 85, 61 A.2d 892, 4 A.L.R.2d 1309 (1948). It does not lie within the province of the court to re-write or distort a contract, or to make a better contract for the parties than they themselves have seen fit to do, or to alter it for the benefit of one to the detriment of the other under the guise of judicial construction. Kupfersmith v. Delaware Insurance Company, 84 N.J.L. 271, 86 A. 399, 45 L.R.A.,N.S., 847 (E. & A. 1913). Where, however, a provision in the contract is ambiguous, so that the intent of the parties is not clear, it will be construed most strongly against the insurer, since it was the draftsman of the agreement. Caruso v. John Hancock, etc., Insurance Co., supra. But if, when the words of a policy of insurance are given their ordinary and usual meaning no ambiguity results, the court will not resort to a strained, distorted or technical construction. Jorgenson v. Metropolitan Life Insurance Company, 136 N.J.L. 148, 55 A.2d 2 (Sup.Ct.1947).

Plaintiff contends the clause '* * * and if such death does not result * * * from military or naval service in time of war * * *' is ambiguous in that it is not clear whether the contracting parties intended a constitutionally declared war or undeclared war, and argues the insured's death did not occur 'in time of war,' since the conflict in which the United States has been and still is engaged in Korea is not a war but merely 'a police action'; that under the Federal Constitution, Article I, Section 8, paragraph 11, the power to declare war is vested exclusively in the Congress, and the Congress has not formally declared war on North Korea or Red China; that the ambiguous clause should be construed most strongly against the defendant and in favor of the plaintiff, and in effect distorted to read '* * * from military or naval service in time of a constitutionally declared war.'

Plaintiff finds support, and in fact, relies heavily upon Beley v. Pennsylvania Mutual Life Insurance Co., 373 Pa. 231, 95 A.2d 202 (Pa.Sup.Ct.1953), for this contention.

In the Beley case the Supreme Court of Pennsylvania, by a four to two vote, held the conflict being waged in Korea is not a war within what may be termed the constitutional or legal sense of that word, and permitted recovery of double indemnity benefit for death of a soldier killed in action in Korea. The opinion of the highest court of a sister state on a similar question is entitled to great respect. However, a reading of the majority and dissenting opinions in that case will demonstrate that the Supreme Court of Pennsylvania gave a legalistic, technical construction of the word 'war.' Our courts have given the word a realistic interpretation when used in private contracts or documents. See O'Neill v. Central Leather Co., 87 N.J.L. 552, 94 A. 789, L.R.A.1917A, 276 (E. & A.1915), affirmed Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726 (1918); Jorgenson v. Metropolitan Life Insurance Co., supra; Caruso v. John Hancock, etc., Insurance Co., supra; Feick v. Prudential Insurance Co., 1 N.J.Super. 88, 62 A.2d 485 (App.Div.1948); Glantz v. Willow Supply Co., 139 N.J.Eq. 523, 53 A.2d 346 (Ch.1947); Schaffer v. Oldak, 12 N.J.Super. 80, 78 A.2d 842 (Ch.Div.1951); Berg v. Berg, 13 N.J.Super. 479, 80 A.2d 584 (Ch.Div.1951); Publix Asbury Corporation, Inc., v. City of Asbury Park, 18 N.J.Super. 286, 86 A.2d 798 (Ch.Div.1951), affirmed 18 N.J.Super. 192, 86 A.2d 806 (App.Div.1952), certification denied, 9 N.J. 609, 89 A.2d 305 (1952); contra, Feil v. Senisi, 7 N.J.Super. 517, 72 A.2d 348 (Law Div.1950), a statutory interpretation.

I find no ambiguity in the clause, '* * * and if such death does not result * * * from military or naval service in time of war * * *.' Giving to the words their ordinary and usual meaning, certainly a captain in the United States Army on active duty is in military service.

In determining the ordinary and usual meaning of the word 'war' there are a number of definitions which might be quoted. A few will suffice. The New Century Dictionary (1940 ed.), vol. 2, page 2172, defines 'war' as follows: 'Conflict carried on by force of arms, as between nations or states ('international war' or 'public war') or between parties within a state ('civil war'); warfare (by land, by sea, or in the air); also, a contest carried on by force of arms, as in a series of battles or campaigns (see phrases below); hence in general, conflict, or active hostility or contention; a contest, a struggle, or contention. * * *' In the Prize Cases, (The Army Warwick) 2 Black 635, 67 U.S. 635, 17 L.Ed. 459 (Sup.Ct.1862) the court defined 'war' as follows:

'War has been well defined to be, 'that state in which a nation prosecutes its right by force."

In 56 Am.Jur., page 133, section 2, 'war' is defined as follows:

'War is an armed struggle or contest by force carried on for any purpose between two or more nations or states exercising at least de facto authority over persons within a given territory and commanding an army prepared to observe the ordinary laws of war.'

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