Stankus v. New York Life Ins. Co.

Decision Date29 October 1942
Citation44 N.E.2d 687,312 Mass. 366
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

September 21, 22 1942.

Present: FIELD, C.


Insurance Accident. War. Evidence, Judicial notice. Words "War." Death of a member of the crew of a United States naval vessel, sunk in the

North Atlantic in October, 1941, by a torpedo of a nation at war with Great Britain when such vessel was engaged under the authority of the

United States government in outranging patrol as a screen for convoys carrying war materials to Great Britain, arose "directly or indirectly from . . . war" within a provision excepting such a risk from double indemnity coverage in a policy of life insurance.

This court took judicial notice of proclamations and reports to Congress by the President of the United States.

CONTRACT. Writ in the Superior Court dated January 27, 1942. The case was heard by Dillon, J.

S. B. Milton, (R.

C. Milton with him,) for the defendant.

J. S. Derham, for the plaintiff.

RONAN, J. This is an action by the beneficiary under a policy of insurance issued by the defendant upon the life of Anthony Stankus, to recover the double indemnity benefit which, she alleges, is payable to her in accordance with the terms of the policy. The policy provided for the payment of said indemnity "upon receipt of due proof . . . that the death of the Insured resulted directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means . . . provided, however, that such Double Indemnity shall not be payable if the Insured's death resulted, directly or indirectly, from . . . (d) war or any act incident thereto." The case was submitted to the trial judge upon a statement of agreed facts. The defendant excepted to a finding for the plaintiff and to the denial of a request that upon all the evidence the plaintiff cannot recover.

The insured, a seaman, second class, in the United States Navy, was a member of the crew of the U. S. S. Reuben James and was lost at sea when that vessel, which was one of a squadron of destroyers engaged in outranging patrol as a screen for transports and larger ships making up convoys, was sunk by a torpedo during the night of October 30, 1941, while convoying in the North Atlantic, west of Iceland. For a number of weeks prior to the sinking of this destroyer the United States Army and Navy had maintained military bases in Greenland and Iceland. During the summer and fall of 1941, and before October 30, 1941, several United States merchant ships and merchantmen of foreign registry had been torpedoed in the Atlantic Ocean. The U. S. S. Greer, a destroyer, was engaged in combat with a submarine in the North Atlantic on September 4, 1941, and on October 17, 1941, the U. S. S. Kearny, another destroyer, was torpedoed in an engagement with several submarines which had attacked a convoy in the North Atlantic. The President of the United States in an address on September 11, 1941, stated that the duty of maintaining the American policy of freedom of the seas was the duty of the naval and air patrol, which was operating in large numbers over a vast expanse of the Atlantic Ocean. "Now that means, very simply, very clearly, that our patrolling vessels and planes will protect all merchant ships -- not only American ships but ships of any flag, engaged in commerce in our defensive waters. They will protect them from submarines; they will protect them from surface raiders . . . Let this warning be clear. From now on, if German or Italian vessels of war enter the waters the protection of which is necessary for American defence, they do so at their own peril. The orders which I have given as Commander-in-Chief of the United States Army and Navy are to carry out that policy -- at once."

The defendant has paid the face amount of the policy payable upon the death of the insured, and the only question presented is whether the death of the insured was due to a risk included within the double indemnity provision of the policy, or whether the death resulted directly or indirectly from war or any act incident thereto and, therefore, was expressly exempted from the coverage of the policy.

The plaintiff contends that the policy exempts only a death that resulted from a war in which the United States was a participant, and that as this government was not engaged in any war on October 30, 1941, the death of the insured could not have resulted from a war as that term was employed in the policy. The government of the United States had not at that time declared war upon any nation (see 55 U.S. Sts. at Large, cc. 561, 564, 565, passed December 8, 1941, and December 11, 1941, declaring war upon Japan, Germany and Italy), and no nation had then declared war against us. But the existence of a war is not dependent upon a formal declaration of war. Wars are being waged today that began without any declaration of war. The attack by the Japanese on Pearl Harbor on December 7, 1941, is the latest illustration. This is not a modern method, for it has been said that, from out of one hundred eighteen wars that occurred between 1700 and 1872, in hardly ten did formal declarations precede the commencement of hostilities. Phillipson, International Law & The Great War, page 53. But it is not necessary, in the view that we take of this case, to determine from the character of the events that were occurring in the North Atlantic prior to the sinking of the Reuben James, whether any actual state of war existed between the United States and any other nation, because we are of the opinion that the meaning of the term "war" as used in the policy cannot be restricted to one that was being waged by the United States and in which the insured was actively engaged, as the plaintiff contends. We make no intimation, however, that if it were so restricted the plaintiff could prevail.

As in the case of any other contract, the words of an insurance policy, in the absence of ambiguity, must be...

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