*1 thereof defendant virtue the plaintiff upon ing account. liable to and the is reversed court below decree costs. his own to pay Each party bill dismissed. Life Insurance Co., Mutual Beley Pennsylvania v. Appellant.
Argued November 1952. 12, Before J., C. Stern, Chidsey JJ. Stearns, Jones, Bell, Musmanno, reargument refused March 24, 1953.
Same
case
Superior Court:
Samuel Herbert Jacobson, J. with him Goldstein, for appellee. Feb-
Opinion Mr. Justice Horace Stern, Chief ruary 1953: struggle present in Korea a “war” the
Is within the meaning employed life in- in a certain term as question policy? decision That for surance brought litigation. recover on In action County County Allegheny policy Court of such policy, plaintiff, under the terms of awarded premiums only of the amount which a return appeal, Superior paid Court On been thereon. had judgment plaintiff for both entered reversed additional acci- face amount (171 From that decision Pa. benefit. dental death 597) ap- Superior 2dA. we allowed an Ct. being peal, issue involved the determination *3 many obviously concern beneficiaries of identical of policies. or similar serving Beley, Army awith United States
Andrew infantry conflict in in the was killed Korea, division serving on March while with the 7, in action contingent of the United Nations forces. United States Pennsylvania May Mutual Life Insurance On policy Company, had issued a on his life defendant, plain- Beley, present Julia the his mother, in of favor policy of amount was with a $1,000 tiff. provided supplementary attached contract which for indemnity of in case violent acci- external, double provisions policy the of death. One dental was engages military in that Insured “In the event that liability time of the naval or service pre- Company be limited to the return of the shall paid unless Insured shall have hereunder, miums Company permit previously from the en- secured (Admittedly, permit gage service.” no such in such secured.) had been the additional accidental death
In connection with provisions as “Risks follows: Not were there benefit AssumedThe shall not Company be liable for the additional Accidental Death Benefit specified above if said death result shall reason any the fol- lowing: ... air (d) naval Military, service time in connection (e) Any war. work actual war- duties or fare, riot, insurrection, police any act inci- dental either land or . .” water. . thereto, “Termination: —These for the provisions addition- al Benefit Accidental Death shall termi- immediately if nate: ... the Insured shall at (b) volun- time, tarily engage air or involuntarily, military, naval service time of . . . .” war; refused Company payment face amount on the ground insured en- was “in military service the time of gaged war” and re- fused the accidental death payment benefit on the of. additional the death of ground the insured had In resulted reason such service. our opinion, Court entered Superior properly judgment for plain- amount her claim. tiff the whole Korean The facts situation concerning brief- are, the charter of By the United ly, Nations follows: — principle there established mutual assist- and certain were embodied provisions therein for ance, action prompt effective for the insuring mainte- In peace. international pursuance nance of of that ob- in the Mutual Defense ject Assistance Act Congress, *4 63 Stat. of authorized 6, 1949, 716, October the Presi- military as therein assistance, dent to furnish provided, of Korea and the Republic Republic to the June a 25, 1950, On commission Philippines. having Korean forces had North made an that reported unpro- of the Republic the upon Korea, Security assault voked a the attack as breach of interna- Council denounced the authorities of called North upon Korea peace, tional armed forces their and forthwith, asked to withdraw Nations to render every of the United as- all members sistance in June the execution of the On resolution. the President statement 27, made 1950, public which he referred to call Council by Security the or- he had stated that under such circumstances dered United air and sea forces give States that On Korean cover and government troops support. resolution by same Council a second day Security United Nations recommended that the members Korea to the furnish whatever assistance Republic attack the armed might repel order necessary and security to restore international peace area. another resolution July On 1950, still pro- members that all Security Council recommended for a unified and other assistance military vide forces the Unit- under States, requested command the United forces, ed commander such States designate flag the United Nations’ and authorized the use of invaders. the North Korean against action rec in certain enactments, Although Congress has, are forces the United States military that ognized for the and has funds appropriated Korea operating is of the armed forces it obvious there, support nor ever there recital events that was not, the above Congress against of war any has declaration been, a dis merely state or but nation, other country, Presidential order of naval military, to Korea patch in accordance with forces of the United States and air Nations the Charter the United the provisions Council. Security and the recommendations un that has power it is Congress therefore, Since, to declare since that war, der the Constitution & Tube Co. v. Sheet (Youngstown is exclusive power action, it is 642), U. S. clear Sawyer, may is not a “war” within what in Korea waged being of that “legal” “constitutional” sense be termed however, urges, Defendant term. fact as a minor “police what started apparently because *5 action” has reason its its developed, by duration, and the into a san- number its bitterness, casualties, urges and fur- guinary grave struggle proportions, in connotation of ther the word “war” should not be limited Company’s policies declared but formally embraces clash of in which the methods of are arms war pursued, where conflict ex- especially is, as such Korea, tensive dimensions. The trouble with this argument that if the word “war” policies such were to be inter- than as other one declared preted courts Congress, at sea utterly question would whenever arose as certain expeditions whether which United States forces were engaged constituted a war. It has been in a out pointed report Committee on Foreign Affairs the House of Representatives that during period between 1798 1945 there were some 150 or more occasions on which our military forces engaged were various countries, notably China, Central Mexico, America and Caribbean Republics, in the course of some of which incidents there were really serious engagements and many casualties. Who, would be the then, tribunal to decide an whether such undeclared Conflict did or did not amount to a “war,” —a a court? jury, What would be the criterion de- number of cision, troops involved, the number of —the the duration of the casualties, hostilities? for ex- If, had lost life' in ample, Beley his action in Korea a day or two after our arrived troops first would a there, then or would it existéd, have not have become a war Of until magnitude the'struggle finally revealed it- casualty-lists'became and'-the self so distressingly long frequent? of án Obviously the insured’ under right -recover policy-should a life insurance not-be left to depend- not’ óf question governable determination upon by’ *6 legal con- definite either on the factual; test interpreted trary, its should be terms conditions according definite and uniform standard. Even to some meaning any of it conceded that the of its were to be really terms that accord- was involved doubt, doubt, ing all canons of should be established construction, A of in- of the insured. life resolved favor up pre- highly is a technical drawn instrument, surance by experts sumably legal on be- meticulous care only Company, in- of not half the Insurance who legal all in their but how tend to use terms sense know accomplish may there- that it result; assumed, if defendant had here meant to invest fore, term a broader connotation than its “con- “war” with “legal” it ef- stitutional” or would have intendment, by indicating this addition of such an fected words example, for “declared or undeclared” intention war. as, The existence or non-existence of a state of Avar only judicial, if political, question, and it is not a made been a formal declaration war has and when ju government political department by may cognizance so made when thereof; be taken dicial Bishop upon judiciary: binding Jones v. it becomes Rogers, Petty, v. Perkins 320; & 28 Texas 294, 319, M’Claughry, Fed. v. 136 Indiana Hamilton 167; 35 124, Supp. DeAngelis 41 F. Verano v. Coal Co., 449; 445, application involving question 954. An exact Japanese principle in connection with the arose surprise 1941, December Pearl Harbor on 7, attack on officially Japan being declared Con war with following, day all gress 8. As we December until the appalling in that were lost an number lives knoAV, majority yet, cases in a in attack, infamous interpretation em “war” as volving word policies here ployed to the one similar in life insurance not exist on De- war did question, held that 238
cember and therefore the beneficiaries of poli such v. Palmetto State cies were entitled to recover: West Insurance 202 C. 422 2d (25 475) ; S. S.E. Co., Life Rosenau v. Idaho Mutual 65 Idaho Association, Benefit 2d v. Sun P. Assur. Co. 227; Savage Life 57 F. v. Sun Assur. Co. Canada, Supp. Pang 620; Life (37 C.C.H. Life Cases 496 Hawaiian Canada, Rep. . 208) de- provision present policy exempting fendant the additional accidental liability death benefit if death “any should result reason *7 in connection actual work insur- riot, warfare, police duties or act incidental rection, thereto, either on land or water,” evidently refers civil Avork as from the distinguished immediately preceding exemp- tion in of air or the case naval “military, service,” has no therefore case. It application present in that in may noted, hoAvever, passing, par- ticular clause the term “actual warfare” is indi- used, an on the of the cating appreciation part insurer of the distinction between the more technical term “war,” and the term “actual warfare.” general
Defendant some argument directs to the proposition if it be held even that the insured was not that, en service time gaged military far of as the in Korea action is the United concerned, States was still-at Axis war'.with'the Powers when Beley was killéd March 1951.’ .on 7, Although Constitution -is provides Congress that the authority to declare war, there no in- provision to an regard authority which should' have thé- -to power declare the' termination war. -I-tis true that 'for certain -special- purpose's it may be- important for -órevén--necessary Congress or the - President to' declare 'á officially date marking time when a wáf- is'-to-be-'éo'ñsidéred'.as'legally ended'; indeed different such1dates-may 'be -designated various pur
239 there here involved particular purpose For the poses. the war with pronouncement no need for a some in fact terminated had Japan Italy Germany, be added, although may Beley’s death, before years six v. in Harding Court Superior out as pointed Pa. 171 Insurance Company, Mutual Pennsylvania Life resolution Con joint that a Ct. Superior did declare 449) (61 that, Stat. July 25, gress and war emergency certain in order to terminate be deemed countries should those the war with powers, date. ended as Court is affirmed. Superior
The judgment Opinion Concurring : Ms. Justice Musmanno made application March Julia Beley On 4, 1945, life the sum $1,900 for a years age. her son then student Beley, Andrew issued May 1, 1945, provided, which was policy, “In the Insured engages inter alia: the event that time of the liability service military naval be limited to return Company shall unless the Insured hereunder, shall premiums paid *8 from the previously Company secured permit have in to service.” engage such for additional benefits of allowed $1,000 came to death
in event the insured his accidental but under the “Bisks not assumed:” heading: means, “The Company the contract read: shall not be liable for additional Accidental Death Benefit specified if shall said death result reason of any above . . . . . (b) (c) (d) . . . . air following: (a) Military, (e) in time Any or naval service war. work in con- actual riot, nection with warfare, insurrection, police incidental or act either duties on land thereto, or . . .” water.
On October Andrew had had Beley, who some previous military experience, was recalled into active service and in due time sailed to embattled Korea where on March he made the 7, 1951, sacrifice. supreme
His mother submitted of death to proofs the insur- ance company which refused payment under the policy on the ground that her death son’s came within the ex- cepted provisions the policy. Beley
Mrs. suit in brought assumpsit $2,000. The company offered to return premiums paid, which amounted to and the $152.60, Allegheny County Court entered in judgment favor of the plaintiff in that amount. The plaintiff appealed to the Court Superior where the judgment the Allegheny Court County reversed and in entered favor in plaintiff full of the policy. amount
The insurance company has to appealed this Court, for our submitting consideration the following ques- tions :
Did Beley Andrew come to death his in mili- while in time tary naval service of war?
Was he at the time his death in engaged military, air or naval service time of war?
Was he engaged any work connection with ac- tual warfare, riot, police duties or insurrection, any act incidental either on land or thereto, water?
In principles discussing law involved we must assert at once that case, deny Korean action military is war its popularly ac- is cepted deny meaning evidence one’s senses. Courts take normally judicial notice of whatever unquestioningly informed accepted by society as fact. A ask in judge does not court for proof that ice forms at the North Pole the World Series refers a contest baseball teams. between Courts know that *9 are pitted against armies each other Korea, utilizing every known to modern the effort and device warfare determination exterminate each other. We know every this to true because medium of communica- tion informs extant us that it is There true. is not printed picture one one or one in the voice, word, news- papers, images radio broadcasts and television which present eyes appeal before our themselves to our bespeaks anything contrary. ears that to the In addi- judges physically have seen tion, soldiers who have re- turned Korea and have witnessed the evidence of their contact with forces which have inflicted wounds peculiarly gunfire the result of and cannon fire, the trademark of war.
Judges through have seen, media incon- authenticity, photographic testible flag- evidence of draped being by ship caskets returned from the distant peninsula Figures of Korea. released the United through reports States Government, official which the accept (and courts unless controverted there has been anywhere no accuracy), denial of their establish that our casualties Korea have reached the dreadful total represent more than 128,000, Avhich 22,519 deaths. Nothing graphically identify can more conflict as war grave than casualties of this awesome character. yet, Spanish
And American which war, is ac- cepted governmentally historically every and in produced other manner as a full-scaled the rela- tively small number of 361 battle deaths and 2,565 deaths disease. The total again casualties reached, comparatively, the small number of 4,506. The num- troops engaged ber of American was 306,760. even loss of
However, one life or none at all, if there be a solemn declaration of war, makes mili- tary Congress only action, war. body is the United States which can declare Avar. The Korea con- non-congressionally flict is a declared war. Does that *10 242 legally congressionally
in itself make it different from a question declared the an- war? The answer to that is question posed swer to the this lawsuit. early Supreme
As the Court of the United 1800, Tingy, 4 the case of Bas v. Dallas 35, drew States, a distinction a declared or and an between solemn war imperfect undeclared or “If it war: be declared form, perfect it called and of is is because solemn, kind; one whole nation at another is war with whole nation; declaring and all the nation the members of are against authorized to commit hostilities all the members every place, every of and under circum- other, stance. In such a all the members act under a general authority, rights consequences and all the and of to their condition. war attach may
“But hostilities subsist between nation, two being confined in nature and limited extent; more its places, persons, things; prop- as to this is more erly imperfect because not and be- termed war; solemn, are authorized to commit cause those who hostilities, special authority, go and can no farther than act under of their commission.” to the extent Supreme discussing In 1866 the Court Texas, Bishop Petty, v. Jones & said in Tex. War, Civil legal aptly 319: “War its has been de- sense among fined to be ‘the nations whom there is state interruption pacific general all an and a relations, by sovereign.’ of arms authorized It contestation may frequently in latter has times been true, commenced and carried without either a notice or by gov- can declaration. But there be no war its still, judicial the court can take knowl- which ernment, edge, until there been some act or declaration creat- has by department ing recognizing its existence war-making power.” government clothed by Corpus “. . defined must . be an Juris, asWar, armed carried on between two bodies struggle political each of de authority per- which exercises over facto sons within a determinate and its existence territory, is determined department the authorized political war can never exist with- government. 8o, lawful out the actual concurrence power, war-malcing but exist may prior contest armed forces. The courts are bound a declaration or determination *11 proper the that a war by department government of while until been such a there has been declara- exists, tion or determination courts cannot take judicial the of notice the existence of a their by government.” war (67 336). C.J. (Emphasis supplied)
This “A court how- authority says further: cannot, take notice of a war its ever, judicial by government until there act or declaration creating has been some the existence war the recognizing department of the clothed the government war-making power.” with 338). (67 C.J.
On the Committee on February 20, 1951, Foreign of the United States House of Representatives Affairs a No. offi- report (House 127) released which Report refers to in cially operation Korea not as but war in as Action Korea. it states: “No dec- Specifically laration of been made by war has The Congress. not proclaimed President has state nor have North Korean or Chinese Communists authorities.” If the drafters the contract of insurance which to plaintiff was sold here intended the word War used therein to be interpreted its constitutional entitled to sense, plaintiff since the recover, action about the death of brought which Beley Andrew was within purport exclusionary clause. The task this case been judiciary lias not to define the War its broad word general application but it intended to mean by what was parties cir- and the history in the
the contract, light of the time. cumstances In addition many meanings. War has
The word as an be defined may an armed being conflict, inimical hostility an as contest, act opposition, ordinarily It a locale not asso- may and strife. have ciated its gunpowder connotation, as, instance, and in Milton speaks “impious heaven,” find: “The of his mouth words were (lv. 21) Psalms we than butter but war his heart.” smoother meanings word War take' on. still further when may another conjoined acquired particu- word Avhichhas history lar because of the of the times. significance Cold War has a canvas of Thus, phrase painted dramatic and the ca- tragic scope beyond depth a decade pacity imagination ago. defini question presented by case has not
tively been far as can passed so research ascer upon, court of last resort tain, United States. decisions have lifted However, various lanterns light *12 on the as to the seeming paradoxical query whether in conflict Korea War or not. in is The decision the of case New York Ins. Co. v. 166 F. 2d Durham, Life sheds its own beam of 874, particular on the analysis subject. the York New Life There, Insurance Com on pany, December issued a 1, 1943, policy on the life of Lewis Durham conditioned that the amount payable should be restricted if the death of “ insured should occur ‘outside the home areas while the insured is the military naval forces of any . country engaged war . . “war” includes undeclared ” war.’ On September 25, 1945, while the policy was in full force and and the effect, insured was in the military the forces United States, he died outside the home areas from wholly non-military causes. The Insurance denied Company liability the amount face
24S policy, contending that the death of the insured provisions excluding policy. came the within judgment The lower court entered a favor of the plaintiff in the full face the and the value Appeals, Circuit Court of Tenth on March Circuit, judgment, affirmed the the that as basis death of the insured occurred after the surrender enemy, though treaty peace even no had been signed, ‘country insured “was not service of engaged in as those war’, words were used to measure coverage in the insurance contract.” say
The Court did in that case that “The existence peace solely of war and restoration of are determined by political departments of our Government, conclusively upon binding such determinations are public Courts in all matters state concern, having recog- been its existence must be declared, peace proclaimed, although nized the Courts until may actual warfare have ceased.” Nonetheless, say private Court . . “in went on that: all . matters, parties public unaffected undoubt- interest, are edly give to contract with to war and to free reference meaning, it such connotation as does not definition, public infringe upon policy” (Emphasis supplied.) Allegheny County When this case came before Judge the learned Loran Lewis of that Court Court, dissenting opinion appropriately filed which he every type said: “If the word ‘war’ to include hostility might occur between the armed forces open an nations declaration of different without possibly then could not know whether the insured beneficiary protected if he his his met death would *13 company going on. The could hostilities were while liability possibly be under their would know what not if court decided the hostilities until some the contract constituted a ‘war’.” referred to 246 intend- or company insured the
“I not tbe do believe what contest guessing into any such ed to enter the policy.” under rights were legal their adjudication that the Judge agree Lewis I be ascer- cannot contending parties rights the or chance. conjecture through process tained attorneys contract, wrote insurance whose company, agents; their employed by the words must stand contemplation connection War, can mean war de- only States, United the law that can declare authority it, i.e., only clared Congress. actions foreign to denominate as war all
If we were have been en- military United forces which States to conclude that United we would have gaged, been at his- peace has never practically States From 1798 to 1952- the United country. of our tory forces abroad used armed some times.1 States has no of these casualties course, Some involved actions, But it is the number of them did. not many but or a foreign which decides whether not mili- casualties No action is war not. one would tary “legal” seriously slight contended have commitments of American June to the Korean troops 27, 1950, Nor constituted would authorities on war. in- action, law declared that the American ternational have action month later constituted If Korea a war. the Korean on June 27 or action was July when did months A it become war? Five later? year later? When?
Would the appellant argue that company action became war military when the casualties a certain say, 5,000 reached figure, Would 10,000? certainly the action war when argue Report pp. 55-62. House No. *14 if that And assume mounted to we casualties 50,000? thermometer metamorphieal a certain on the degree ac- military marked at point casualties which point tion became who would determine when not declare reached? The courts could certainly was there no law which is point demarcation, what arbitrary such an determination provides successfully Nor it be argued constitutes war. could a certain pe- that a action becomes when military war no constitutional riod time has since there is elapsed, or statutory chronological basis for an automatic such determination. and construe The courts law interpret in ef- cannot make and that is facts; they what, facts, asking us do that we appellant would have fect, from decide when the action Korea military passed action military into constitutional war. legal If the insurance logic appellant company were to be then the accepted application history, into the Boxer Pershing Expedition Punitive Mexico, into Expedition Marine many Nicaraguan China, expeditions and others of that all involving character, American would have as wars. casualties, regarded But no historian agree would with such a conclusion.
There can be acts war without there a state being of war. Beley was killed an aet but not in war a state of war. The of New York Ins. case Co. Life v. 158 F. 2d Bennion, illustrative of this prop Captain osition. Bennion, commanding battleship West was killed Pearl on Virginia, at Harbor De cember at the time of the 7, 1941, Japanese sneak at tack. War against Japan was. not declared until The on Ben following day. policy Captain nion’s life did not covér “undeclared and the court war” of first instance on allowed recovery policy. Circuit Court Appeals, however, judg reversed .excluded, . ment because the for death coverage act resulting (Em- “war incident thereto”. phasis supplied). attack of December 7th cer- an incident tainly act war even though state had not come into being. decision Commenting later the case on, *15 York of New Insurance Co. v. the Durham, supra, Life Circuit Court added this illuminating observation: “. . . while that of a recognizing existence state war to political question was be determined solely by political departments, we were nonetheless of that the opinion political determination of the com mencement of war immaterial if was to the parties private clearly intended that contract, war should have a different meaning. When the contract was viewed context and its the manifest intent the parties we were of the ascertained, opinion that con they tracted with reference to war its real and practical that its hazards to human sense; is, that life, Courts were not required ‘affect a technical igno rance’ of actualities.” For that as reason, already the Court held that indicated, the attack on Pearl before the formal declaration of Harbor, war was “war or an act incident thereto” within the of the meaning insurance which used contract, those exclusionary words.
In the case of v. Harding Mutual Pennsylvania Life Ins. 171 Pa. Superior Ct. Co., which is recognized as a case to the companion one at bar, Superior Court held thé against insurance company’s contention, practically identical:with the one-advanced here. The learned Judge the Pennsylvania Superior Dithrioh in a very and able Court, said: interesting opinion, “Since ‘war’ is a word which has been held to import various it is -.meanings, upon incumbent the insurer make clear that to undeclared well applies as war, as to declared if the: action Korea war, for .even at an undeclared should be it is most held opinion In to meet the war. our has failed insurer upon attempt appellee to burden it. cast indemnity liability not receive evade of double should judicial phraseology was condonation. form to chosen in fixed the insurer and tendered prospective language policyholder, since its reasonably open adopt constructions, to two we will construction which is more favorable to the insured.” Judge very appropriate directed also Dithrich query company, in the direction of the insurance name- ly, “if did the insurer not intend to use the “war” word legal in its technical declared sense, war i.e., Congress, but intended it to include undeclared why provision was well, inserted presumably contract”? Further: “The contract prepared by competent company attorneys, *16 no were who, doubt, familiar with the recent de- most relating provisions cisions to war risk in insurance appellee if did and the contracts; intend assume growing risks of out it hostilities short of could war provided by extending phrase have so the ‘in time of war’ to include undeclared war.”
In the of West case v. Palmetto State Ins. Co., Life 202 S. C. 25 S.E. 422, 2d the like 475, insured was, Captain also at Bennion, killed Pearl on De- Harbor pro- policy cember 7, 1941. His insurance carried the indemnity vision that double for accidental death payable would not be in the event that should death “engaged military occur while the insured in was allowing naval in recovery, service time of In war.” Supréme the pointed Court South Carolina out that exclusionary provisions policies the in the insurance under contemplation consideration were in written only the law of the United under States which. Con- gress may declare war, which course had it not done Pearl attack fleet at
at the time of the bomber on our of Decem- the aerial assault Thus, Japanese Harbor. sense ber “did 7, legal not constitute 1941, in the policies.” within the thereof intended meaning at Court also took of the fact that judicial notice the the time of Pearl Harbor aggression high diplomatic Pres- representatives of with the Japan conferring were ident States, State of United Secretary which, an effort to “professedly preserve peace, and the other facts found that a state record, two war did not at that time between the exist nations.” Court
After from various quoting authorities, seen said: “It from the authorities that foregoing Decem- Japan declaration war on by Congress which could only way country ber was the legal in a state nation. placed aggressor be of war with That so Art. provides, §8, supra. Constitution contracts were entered into by parties clear can- contemplation subject law, it, not be are bound it." denied; they (Emphasis supplied.)
It case at bar that only can assumed contract accepted the insurance parties May, “in States under law United contemplation can declare only Congress which war.” had Beley If contract included conflict “undeclared which the Korean phrase war,” no would have because arisen is, problem indubitably *17 in the constitutional indubi- the Korean conflict, sense, (cid:127)war. since that However, phrase an undeclared tably is to we are compelled appear contract, does not óf history pages of 1945 and scan the book unclasp the and surrounding immediately, .preceding, the. times. of ..... of the contract. the writing of the complete the shadows 1945, pending In May, of and had Germany Japan defeat and unequivocal globe. fallen over the The United Nations also an reality though officially definitively assured even and it being did not into until come October 1945. The sprang United Nations from the resolutions peoples succeeding hearts of of the “to world: save generations scourge from the of war, which twice brought our lifetime has untold sorrow to mankind.” The three main bodies the United Nations are the Assembly, General the International Court of Justice Security Security and the Council. The Council con- sists eleven nation-members. It is one of the main Security (Art. 39) functions Council to: “. . . peace, determine existence threat to the agression peace, act of breach of or and shall make or decide what recommendations, measures shall be taken accordance with 41 and Articles to42, maintain peace security.” or restore international and provides 42 of Article the Charter as follows: Security Council consider “Should that measures provided inadequate for Article would be or have may proved inadequate, be take such action air, may necessary or forces as land sea, maintain or peace security. and restore international action Such may opera- demonstrations, blockade, include and other or land forces of tions air, Members sea, United Nations.” provide:
Paragraphs 1 2 of and Article “1. All in order United Members contribute Nations, peace security, of international to the maintenance and Security to make available to the undertake Council, special agreement with a accordance its call and agreements, in- assistance, armed forces, facilities, passage, necessary purposes rights cluding for the peace security. maintaining international agreements govern agreement shall “2. Such degree types their readiness forces, numbers *18 general and and of the and location, the nature facilities provided.” assistance to he years history
For five recorded thousand of the earth people has run the blood red with of war. powerless convulsed these wars various nations were queens, kings, to resist the orders sultans, kaisers, emperors, pashas and absolutists, other who ordered power to into in order achieve them land, loot, battle caprice satisfy entirely glory or sadistic whim or even to fighting. foreign did the to those who the welfare Following each the termination of war the monarchs respective to their thrones or returned or chieftains bury leaving the and dead their dead tribal mansions, crippled manage misery their as best maimed and impartial attempt they was ever No made, could. responsible body, outpouring after each vast right wrong, and who was who determine blood, catastrophic voluntary in so enter- both sides because right. prise been in the have could not Humanity crucified between been the thieves had adjudica- yet Arrogance and there was no and Greed, guilty driving anywhere for the nails. to who was tion pleaded for time mankind a cessation From time to Societies extermination. of brothers this licentious against religious pledged armed conflict, formed, were holy symbols peace, but these aloft held bodies trampled organizations and were scattered and societies Conquest galloping hooves of Domination under tyrants the sword to carve themselves drew when greater power. greater territories killed world war which off more than In after many persons and took nations to the brink 15,000,000 bankruptcy, physical and moral wise and disaster peoples sprawled world, noble heads invited temple ruined of sacred debris in the dust and join together in the formation to rise human life, people understanding. realized of a world they wars of this character were the who were ones always winning whether on the losers, so-called *19 they losing great side or on the and a side, evinced willingness organization for an international that would peace paradoxically insure that if even it had to be accomplished by force. League
And the of Nations was formed. towering lamp light up folly A to the criminal begun, no matter where or how rose above the highest highest prides mountains and the nationalistic prejudices, and but in the absence of the United States replenish the moral and material oil in this beacon, light succeeding burned low and in the a darkness, psycopathic paperhanger away again gem stole peace jewel understanding. and the of world
Adolf Hitler would never have been able insult, finally challenge threaten and the world to a contest League intestines if the blood and of Nations had authority spoken possessed. it with Had the United global assembly, member States been a of that a jacket have been thrown around the Nazi strait would predatory first madman his and War II move, at World subject fantastically only imagin- would have been ative writers. gigantic run
When this most all had its wars bloody agreement an international course, established adjudicate guilt tribunal to of those innocence charged having precipitated the holocaust which wiped popula- than out more world’s 30,000,000 nations to ruin and reduced and introduced tion, rubble, language into the most horrible word since babbled man genocide. to man—that tribunal also to expose workings to the world the of the most brutal misery engine production for the ever devised camp exterminating horror —the concentration oven. stud- evidence, events,
That tribunal heard reviewed ied those who plots plans wrought after rendering incredible havoc earth and man, and, formally responsible individuals, judgment against “its that War evil because pronounced consequences but belligerent are confined to States alone, world.” the whole affects
It further that “to initiate a of aggres- declared an is not international it is only sion, therefore, crime; international crime differing only the supreme contains within crimes itself other war evils whole.” accumulated its aggressive To that another war with all forestall terrorsome deadly and of de- machinery even more *20 conceivably erase com- could now civilization struction life itself planet out from the earth, and blot pletely from all into parts world entered representatives have is the United we Nations. compact which, seen, now constitute United nations, which sixty have their own individual but each all flag, Nations, up tint into making supreme banner— lends a ray of Peace. the banner of 1950 part latter Andrew sailed from Beley
In the America under that banner. He wore the shores he bore soldier’s he was uniform, arms, soldier’s art war but his mission and science was skilled a sword a cannon or a was fired drawn, Peace. Never in a worthier cause than that discharged to which bullet himself dedicated as he neared the Beley bleak Andrew land of Korea. And never did one offer a gnarled and Beley to that cause than did tribute Andrew holier he his life for gave and 7, 1951, peace March when on liberties every which American the preservation Peace. in the word understands United States the Korean participation one and but one object purpose but affair had —Peace. Peace merely but for all time. Of today course, this same has been thing said other international during conflicts but we have seen permanent peace how never achieved because of the failure of a strong enough world federation to enforce upon obligations nations they had voluntarily assumed.
The Soviet Union is a voluntary to signatory charter of the United has Nations. The Soviet Union violated the letter and the under spirit of its obligations the United Nations charter by the attack directing North Korea South material lending Korea, aid to the North Korea aggressive waged being and Red China South against Korea.
For the United Nations to legal have shirked its responsibilities under Article 42 the Charter would been to have all mankind. To betray have failed resist North Korean Communist would aggression meant repudiate have Article 42. To Arti- repudiate cle would be to abandon the purpose whole United and to of the world Nations, peoples throw the bloody pit back into suicidal war.
To have to the yielded Communist aggression have meant 1950, would invite similar June, more in Asia wide-sweeping aggressions Europe. stated in his learned by Judge opinion
As Lewis : “The invasion of the North Korean troops (supra) *21 definite and a aggression a act threat to world United prevented Unless the Nations such peace. it would an collapse threat to international peace force.” of the human
Korea is test race to live reason not to settle differences by force, scales If and not the muzzles of cannon. this test justice civilization is doomed. Winning fails Korea, the con- militarily winning does mean losing test and unflagging uphold- it means a never-yielding flict; war is the that of the principle supreme ing aggressive or its condoned the crime that can never be crime, unspeakable consequences palliated. generally blos- in 1945 that the
Americans believed Hope Horse- and that the Four somtime of had arrived, Apocalypse again gallop their men of the would never bleeding earth. martial steeds face across We had reason to that the world assembled believe own in the Parliament clause our the war Man, gradually conceivably obso- Constitution could become Expeditionary en- be; lete. missions there would Nations would forcement of the decisions of the United groups forces, armed entail the commitment of of our together remote cross- with those of other to nations, globe, roads on the but full-scaled wars—with other another or United States alone on one side and possibility that we nations on the other side—was melting rapidly inter- in the crucible believed was amity. national against background general under-
It was Beley standing, (whether the drafters consciously not,) the contract it or realized may that, And well here before us was written. responsibilities Charter of of our under the because upon Congress called never be United will Nations, signifi- accepted again originally in its declare war Security supra, According to Article cance. threat existence of Council “shall determine the agression, peace, peace, or act of breach of the onwar Since defensive make recommendations.” shall aggression through part only come about could our subject against (which exclusive matter is now the us Nations) never and since we would United hands of.the exceedingly wage aggressive it' is war ourselves, an problematical occasion be another that there ever would except merely Congress to confirm declare upon already agreed Nations. the United action *22 might It be in new that, state of an affairs, amendment to the Constitution will be order to as- sign Congress power the sole when determine our military implementing forces are to used decision Security of the Obviously, United Nations Council. present interpretation superim- under constitutional posed over current obligations, international the Presi- military dent can commit our armed forces actions into equal magni- on surpass a scale which can and even congressionally past. tude the declared the wars of people Whether the of the nation desire this shall gov- power remain a fixed attribute executive vitally curtailing powers legis- thus ernment, of the government, lative of our branch is a matter for serious simply concern. is an However, this observation adjudication writer not needed to the of this case. Beley From all I conclude that Andrew above, did not come his death as result of a state of War contemplated contracting parties that, plaintiff entitled to full recover the therefore, policy. value of the judgment
I affirm the would, therefore, Superior Court.
Dissenting Opinion Me. Justice Bell: Beley May years before Mrs. more than 5 1, 1945, policy obtained a War, outbreak Korean Beley, then on her Andrew who son, life provided policy years age. seventeen for monthly including premium |2.18, an additional indemnity monthly premium double case 20^ limit death: included a clause of accidental premiums ing liability in the event to a return .of the military engages service or naval .'that “insured pre- the insured have in the time war *unless shall * throughout, ours. Italics *23 to permit engage secured from the
viously Company had It that such a permit such is conceded service. not been or secured. requested also “accidental death bene- beneficiary claimed under for supplemental fits” the contract additional the policy. accidental death benefits which was a part Accidental supplement This “Additional provided: that . Death Benefit: —If the of death . . show proofs directly independ- the death of the Insured and resulted injuries of all other causes from sustained ently bodily . upon . . . . . accidental . . then through means, . the beneficiary such Company pay will proof, . record . . amount of indemnity equal additional the face said . . payable amount under Policy,. not be
“Risks Not Assumed —The shall Company for Benefit liable the additional Accidental Death if said shall result reason specified above death naval ... air or any following: Military, (d) in time war. work connection (e) Any service or actual duties warfare, riot, insurrection, police . . . act on land or water any thereto, incidental either person.” other injuries by any Intentional (g) inflicted A termination clause also provided provisions accidental benefit immedi- additional death “shall ... if the Insured at (b) terminate: shall ately military, voluntarily involuntarily, engage time, . . . in time of . . .”. service war; Andrew served Beley
Several years thereafter, army permission knowledge without and killed action in Korea on company liability The insurance denied 7, 1951. company March sued in beneficiary assumpsit. and have learned and distinguished Judges Although under their decision recovery policy, allowed I believe, incomprehensible. majority, me seems all other terms and conditions ignore language, recovery— aré barriers to insuperable policy —which hold They on one “war”. their decision word pin and This will shock is the Korean War War. and especial- citizens millions millions American man, Every Korean and their families. veterans ly the news- in America informed child is woman thou- many there are and radio and knows that papers marines and airmen of American sands soldiers, sailors, have been engaged are now and for several years who China in open and of with soldiers of North Korea Navy patrolling actual warfare. Our constantly our Air Force of North bombarding Korea; coasts *24 and our enemy, with the having daily dog fights is killed. are the and daily killing enemy being soldiers negotiations been in We years engaged have over two prisoners and to vainly exchange for a truce are trying The exceed 128,000. war. United States casualties it to the Korean War How is that humanly possible say if majority’s is not war? even the construc- Moreover, correct, tion of that one “war” does word were meet or shall the other see, pertinent as we answer, recovery. the which provisions policy prohibit a unaffected by The to parties private contract, a wish they can make any agreement public interest, there- it is The (unless public policy). question against insure fore is: What contract private against? did this to and the read “if majority policy limit change in military war”; shall reason of service by death result then hold that the word “war” means “Constitu- and War is not a Constitution- tional” and the Korean war; A the will reading quickly declared war. ally in- risk it for and covered, paid demonstrate that to and intended cover peace- sured covered against, to wartime activities. time activities in contradistinction occurring, of death likelihood greater Insur- in the risk increase assumed consequent military in service ance if insured Company engaged obvious in would seem manifest; is and it time the premium or cost would much undoubtedly if larger the risk included death than if it from war only included death from It is peacetime activities. likewise obvious that the risk or likelihood of death would be equally whether the great insured was engaged military service time of actual Avar or time of “constitutionally declared” war; consequently line of distinction or majority demarcation which the seek to draw has no reason or it. basis, support to logic
Was “an accidental death result death”; did from service in time if did “military war”; not, death result “actual work connection with if did death result from “intentional not, warfareor not, injuries another if what person”; or inflicted did death result from? The only attempt majority's ansAver these is questions to discuss the word “war”. bo
It are to ordinary well settled words their given ordinary meaning, understood generally light unless instrument considered itself, shows them clearly surrounding circumstances, different “The have been used a technical or sense. natural for the words is their interpretation standard time have contracted at parties who meaning *25 all is made, considering where the contract place Titus, it: McMillin v. surrounding the circumstances 2, in 222 as is volume Williston, Pa. 500. stated But, recog rule has never been ‘This 607, page 1169, section plain the interpretation nized as authorizing in ac of a written instrument language unambiguous indicated by other than that- any- meaning cordance Avith- .-. . -Words are'to be used -the1Instrument/ the words acceptation -accordingdo-tkeir primary unless, construed the; instrument and- the -intention' context" óf from appear-to 'cdilécted-from-it,-they -t-a-be the pafties ¿ Foundation and Construction different-sense”; used Pa. A. 711. Trust 307 Co., 10, 15, 160 v. Franklin Co. Travelers Co., v. Ins. samé effect: Hesse See alsoto G. v. U.S.F. & 299 Pa. A. Aschenbrenner 96; 235. 292 U.S. sec. Co., Contracts, 80; Restatement, prove Plaintiff must therefore in order to recover did that death “accidental” and (1) (2) death was “in war”, from time military result service (a) “intentional from or (c) “actual (b) warfare”, are as these terms injuries another person”, inflicted ordinarily accepted. understood and
It fightings is said that there have been 156 armed of these have history Country. of our Some its own upon been some each case wars, not; depends In that Presi particular case the mere fact facts. to be dent Truman the Korean War has declared irrespective motives, action” of his “police does not, contract of insura private make it so construing a nce.* international or to reasons,
Although political the majority save the of their “position” leader, declared war Congress formally against have not North or Red well China, Congress (as Koreans world) in the civilized knows every person at United States war Korea. See for example, of 1952, Assistance Act Readjustment Veterans’ and Admin Public Law S. Code 550, (U. Congressional the 1952 Amend p. 3903-3929); istrative News 1952, statute, ment to the Veterans’ Rates Compensation Code and Admin (U. Congressional Public Law S. 3028). history In the p. legislative istrative News 1952, it of 1952 Rates statute Compensation of the Veterans’ . . : “Your . believes 3320-3321) committee is said pages * Moreover, contrary of- countless millions of if to the belief citizens, only police “a American the Korean War is not but dyes say, action” as. President Truman and his Administration performing “police a soldier killed therein was not follow that *26 thereto, water”, any duties or land act incidental either on and express policy! terms of the cannot under the recover hence bill, provide will for amended, uniformity veterans all wars insofar as deals the stat- with of utory awards for the more seriously disabled .... groups All the provisions of bill apply and exclu- entirely sively service of connected veterans the Spanish- American War I World Wars and II and group, vet- of erans on or 27, (Date after June 1950.” of service Korean conflict). of also for the use
Congress provision has made in United troops appropria- States Korea malting 81st 843, tions billions dollars Law totaling (Public 1951). Act Congress, Supplemental Appropriation 1950 provides the Revenue Act of Furthermore, tax for members certain income exemptions being, Armed Korea zones, Forces combat serving 81st category. (Public 814, in this Law course, But deals political all of this with 202). Congress, sec. it does issues arising thereout; and with questions and their meaning with contracts deal private intent. Company, Insurance
In v. New York Stankus Life Supreme Massachusetts, Mass. Court respect a similar considering Destroyer on a United States death of a seaman con- while she was ship torpedoed when his (killed Atlantic in October, ships merchant voying her against Germany of war a declaration before war or an act “death resulted allies) held “As case The Court said: in the thereto.” incident of an insurance policy* the words contract; other their must be usual ambiguity, given absence re- The'term ‘war* is not limited, ordinary meaning.' by anything appearing modified stricted or kind particular type to no It policy. refers situation that ordinary every applies general but as war. There noth- commonly regard would people
263 that that the word used indicates was ing policy in sense. A indefinite vague, ambiguous any definitely are provisions plainly of insurance whose be appropriate must enforced expressed language its . accordance terms. . .
“A
the armed
of two nations
conflict between
forces
respective
of their
authority
governments
under
would
be
as war.”
commonly regarded
Court of
as
as
Supreme
United States
early
Country
1799 held that our
at war with
actually
no formal declaration of
made
France
war was
although
Bas v.
war:
Ins. Co. v.
F.
158
2d
Bennion,
Life
Mutual
Ins.
York v.
Co.
New
260;
Davis,
Life
Ga.
Dole v.
App.
Insurance
51 Me.
(1949);
Co.,
Prize
2 Black
470;
Darnall v.
Cases,
635;
Day,
240 Iowa
37 N.W. 2d
Lincoln v.
277;
Texas
Harvey,
“The
for
by
life of the insured
Company,
sumed
and the use of the word war was
premium,
stipulated
a
to denote a restriction or limitation
intended
obviously
It
is plain, therefore,
the risk assumed.
upon
bears a direct relation-
the word war
to
given
definition
is the subject
which
matter
assumed,
the risk
ship
in this
it is also
light,
plain
Viewed
contract.
used the word
had
they
parties
that when
life
thereto.”
to human
hazard
incident
mind the
2
Warwick:
Black 635
Amy
Prize
Cases:
In the
and
captured
brought
were
vessels
various
(1862),
Their
United States.
ships
public
prizes by
as
sustained
by
were
condemnation
seizure
Supreme
Court of the United States because actual
although
existed
there had been no
war.
declaration of
may
The Court
“A
said:
state
actual war
exist
by
party;
without
formal declaration of it
either
foreign
this is true
both civil and
a war.”
my
regard
colleagues
due
for
differ
With
who
with
provisions
policy
holding
that under the
of this
me,
the Korean War is not War—in the face of 128,000
legalistic
American casualties —is so unrealistic and
unjustifiable.
utterly
to be
policy—
the rest of this
But what about
clearly
language
par-
sets forth the intent of the
which
majority ignore!
and which the
This insurance
ties
company
policy provides
shall
not be liable
death
“if
additional accidental
benefits
said death shall
Any
(e)
work in connection
result
reason of
..
.
actual
. . . .” “Actual
warfare” cannot
warfare,
possibly mean “Constitutional”
there is no
warfare;
prohibits
thing!
recovery
also
such
“(g)
death
accidental death benefits if
results from
by any
injuries
person”.
other
Intentional
inflicted
provision
ignored
be
can
How
avoided
or be
inapplicable
unquestionably
when death
held
resulted
injuries
person”!
“intentional
inflicted
another
important,
possible
Equally
ignore
it
how is
unambiguous
clear,
distort
those
words “accidental
instantaneously
It is
death”?
offensive
our knowl-
experience
say
edge,
all
our
our senses to
that this
an accidental death.
authority
anything
If
be needed for
so
obvious,
may
found in Hesse v.
Traveler’s Ins.
Co.,
*30
Equitable
A.
Urian v.
Pa.
149
Assurance
96;
125,
Life
Society,
Metropol
A.
310 Pa.
165
Arnstein v.
342,
388;
itan
Insurance
329 Pa.
268 books: 6 Briefs edition) 5234; on Insurance Cooley, (2d Couch, section 871. Insurance, 1137; Vance, Insurance,
“Another frequently given definition is that quoted by v. Sandborn, Assn. Western Comm. Travelers’ J., Fed. 85 401: ‘An Smith, which is natural effect probable is consequence an act or action course not an nor accident, produced is it accidental means. by It is either the result of actual it falls under or design, the maxim that man must to intend [every be held natural and probable On consequence of his deeds]. the other or hand, an effect which is the natural not probable consequence it, produced means which an effect which does not follow and cannot ordinarily be reasonably means, from anticipated the use those n an effect which the not intend to produce actor did and which he cannot be charged design pro- ... is produced is means. It ducing, by accidental produced means were by which neither nor cal- designed culated to cause it. an Such effect the result of is cannot be design, reasonably anticipated, unexpected, and is produced unusual by an combination fortu- itous is produced circumstances; other words, accidental means/ . . .
“Our cases have held uniformly that where the cause death injury or act of an means insured, which caused the to be must unde result, accidental, signed and unintentional, injury accidental death is an unintended arising result undesigned from acts while injury death accidental done, means is a result acts arising done. unintentionally recovery was on- Thus, allowed these principles Taylor v. Gen. Acc. 208 Pa. Erb v. Comm. Mut. Ass. Corp., 439; Acc. 232 Pa. Co., Kelley v. 215; Pittsburgh Co., Cas. 256 Pa. v. Eby Travelers Ins. 258 Pa. 1; Co., Bloom 525; v. Brotherhood Pa. Superior Ace. 85 Ct. Co., Horan 398; v. Ins. Pa. Prudential 104 Ct. see Superior Co., 474; 79; Pickett Ins. Pa. v. Pac. Mut. Life Co., supra; denied in Semancik Ins. Hesse v. Traveler’s Co., Superior Trau v. Pa. Ct. v. 392; Continental Cas. 56 Co., *32 Camp supra; Ins. Preferred Acc. v. Prudential Ins. Co., Superior 107 Pa. Ct. 342.” Co., apparent policy further limited nature of this is express according ac- from the terms, fact to its that, if death cidental death benefits cannot be recovered participating flying, results from from from suicide, participating in an assault submarine from descent, inhaling gas, poison or felony, taking or or or from bodily infec- from or from bacterial or mental disease, crystal that acci- tion. In other it is clear as words, parties dental and the death accidental death; meant (a) to benefits intended to limit the accidental death resulting further death from an with accident, (b) must not result limitation accident fight, flying, or from a or from descent, a submarine by injuries felony, inflicted from a intentional or from attempt opinion majority no makes another. The requirement of accidental let alone discuss, refute, specific which we or the additional limitations death pointed just their omission The reason for have out. seems obvious. clearly illuminate
These limitations define and parties con- create and limit the intentions recovery insuperable under barriers to a stitute facts of this case! judg- I affirm these would
For each of reasons Pleas. of Common Court ment of Chidsey by Opinion Dissenting : Mr. Justice disposition majority of this that the agree I meaning given the word upon depends case I dis- but involved, insurance ‘(cid:127)'war” interpretation. agree of death The likelihood with their occurring consequent as- in the risk increase and the voluntarily or invol- the insurer if an insured sumed is untarily engages military in time of war, service liability of termination The exclusion or manifest. upon good therefore founded in such the insurer event parties readily both understandable reason, greater an in- likelihood contract. The military engaged time service sured’s death when or “consti- is a declared the war of war exists whether The reason undeclared war. tutional” or an applies equally in either instance. the exclusion limitation restriction, used without word “war” opinion would my as the word construed should be ordinarily for no and calls understood be used and major Certainly conflict be- construction. technical *33 authority under nations forces of two the armed tween commonly governments respective would be their present conflict regarded that the I think as war. exclusionary meaning of the is a war within Korea policy, therefore dissent from provisions majority. view Pennsylvania
Harding Life Insurance Mutual v. Appellant.
Co.,