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Show . . v i. v MONDAY, INTERMOUNTAIN COMMERCIAL RECORD PAGE EIGHT '. i . . In The Supreme Court of The State off Utah every forcible contest dbww""" 11 .There were armed forces from a number of countries engaged in deadly In fact, the United State Armed Forces numbered 7"r died in military while on furlough. . 543,000 met at one time and sustained loss of lives of 46, 079 as a result of its military operations. 2 5 the United State, The Supreme Court of Washington also held that on an insured who was "a country at war" and denied recovery on policy lost his life in Alaska during the Korean War. By the Tonkin Gulf Resolution. the Congress of the United States authorised the President to conduct military operations in Southeast Asia, and while there never was a formal declaration of war by Congress, there certainly was war In every sense of the termso far as the men who fought It were concerned. There was the extra hasardous situation for the insured exactly the same as if Congress had declared that a state of war existed, and that extra hasardous risk wOuld not have been either augmented or diminished one iota by such a declaration insofar as this defendant insurer was concerned. The term "war" as defined in Black's Law Dictionary means "hostile contention by means of armed forces, carried on between nations, states, or A contest by force between two or more nations, carried on for rulers, . . .." any purpose, 1 j.i.. combat in Vietnam. . . -- The Insurer in the present matter undertook to exclude death occasioned by (a) war, (b) any act of war, or (c) service in an armed force of any. international organisation, or any country or combination of countries at war. Since there was an exclusion, no. extra premium was required. A. L.R. 2d 1033. nvrntnents. "-- 7 ar is an existing de facto or de lure, is war, have power pTTTTgi.laTivTdecree. Congress alone maycommence it "or to declare' t beforehand, and thus cause or by But it may be Initiated by other nations, of it 01 not. then it exists, whether there.!, any declaration or n8eii It may belTosecuted without any declaration; nrevious f - existence. r mxv. a.s in xne Mexican wr, and not In either case it Is the fact that makes 'enemies', Dole v. Merchants- mutoi any' legislative. Act. Co., 51 Me. 465,. 470. held that an sured The Supreme Judicial Court of Massachusetts automobile accl-de- nt service in time of war when he died in an i. 36 jm,ts j "But by ordinary people subjected to ordinary hazards, and if the policy ii not to cover extra hasardous situations, the insurer must so state; If those unusually hasardous exposures are to be covered, the insurer will charge extra, premiums to cover the contingencies. 1. JlfLY 22, 1974 f conflict was a The Missouri Court of Appeals held that the Korean no war was declared. war within the meaning, of an insurance policy although on a The North Carolina Supreme Court likewise denied recovery In time In Korea while In the military policy because the insured lost his life 6fwar.8 . .... 122 5. Gudewlcs v. John Hancock Mutual Life Insurance Company, N.E.2d 900 (1954). 2d 287 (1955).. 6. Christensen v. Sterling Insurance Company, 284 P. 278 S.W.2d 7. Lynch v. The National Life and Accident Insurance Company, 32 (1955). 107 S.E.2d 65 8. Lamar v. John Hancock Mutual Life Insurance Company, The American Heritage Dictionary defines the word "war" as a state of open, armed, often prolonged conflict, carried on between nations, states, or (1959). parties. The annotation found In 36 A. L.R. 2d 1028 entitled "Insurance Service Clause": contains the following statement: . When there has been a declaration of war by Congress and hostilities have ceased, the exclusion In Insurance policies regarding death In "war" is not effective even though peace has not been determined. 3 This clearly Indicates . that It Is the confrontation of the military forces rather than mere declaration of words which has been the determining factor In determining the meaning of the word "war" in insurance policies. It is submitted that regardless of technicalities, the sounder view is to include undeclared wars under the term "war" as used, in military exclusion clauses. The reason for this opinion is that, generally speaking, insurance rates are based on the frequency of the risk Insured. ' There can be hardly any doubt that the insurer. In Including armilitary exclusion clause in the policy. Intended to ' Insure the life of the Insured against .the. ordinary risks at the pre- mlum rate computed from a' statistical analysis of the probable life It defiexpectancy of an average person in an average occupation to Intended not to cover risks and service nitely peculiar military not of a the obvious the risk member armed forces Is specifically exposed to In a war While there are some cases holding that the exclusion of coverage because of war must be a declared war, the greater weight of authority and the better reasoned cases hold that a war t is sufficient to exclude coverage where the insured was' killed In an' undeclared war. Examples follow. in-fac- In Langlas y. Iowa Life Ins. Co. , 63 N. W. 2d 885 (Iowa 1954), the insured was killed during combat duty In Korea. The Towa Supreme Court held that the Korean conflict was a "war." within the meaning of the exclusionary- provisions' of the policy although ifcwas never a declared war, . . Other cases throwing light on the meaning of the word are the follow ing: In the case of Zaccardo v. John Hancock Mutual Life Insurance In Hamilton v. McClaughry, 136 F.445, it was held that a court martial Co., 124 A 2d 926 (Conn. 1956), the Connecticut court held that the was properly convened to try a soldler'fnr murder In China during the. Boxer Uprisexclusionary provision of a policy was In effect since the Korean war was a war whether declared or undeing. This could only be done in time of war, . clared. . In the case of Arce v. State, 202 S.W. 951 (1918), the Texas courts proseWelssrnan v. Metropolitan Life Ins. Co., 112 F.Supp. 420 (S.D.Cal. 1953) cuted some- captured Mexican soldiers and convicted them of murder growing out was a case where the Insured lost his life In Korea. In a well reasoned and docuof the battle of San Ygnaclo In Texas. General Pershing had led an expeditionary mented case, the court held that the exclusion was effective, .as the United States force into Mexico, and officers de facto government of Carransa invaded was at "war" within the meaning of the policy. . Texas and killed some soldiers of the United States Army. The Court-o- f Criminal . - of-th- e Appeals held that the state courts had no jurisdiction to try the captured soldiers, as prisoner of war In Korea made a will Which they were engaged in war. under the statute would not have been admitted to probate had not we been at 'war. The will was admitted to probate because, as the court said, the United States There was no declaration of war against the Southern States in the Civil was at war within the meaning of the Wills Act. War. The Federal forces captured some Mexican ships caught trading with the South and confiscated them and their cargoes.. The oases, known as the Prise-Cases- , Another case identical to the Instant one is Stanbery v. Aetna Life Ins. Co. , are found In 67 U.S. 635, 17 L.Ed. 459 (1862). In order to hold the prise's, 98 A. 2d 134 (N.J. 1953). There, as here, the soldier lost his life In a mine exIt was necessary that the United States be at war: The decision quotes from Lord Stowell (The Eliza Ann, 1 Dod. 247) as follows: ' "It is not the less a war on that plosion. The court said: account, for war. may exist without a declaration on either side. " .The word "war" when used In a private contract or document should not be construed on a public or political basis, In a legalWe think the trial court properly held that the conflict in Vietnam was a . istic or technical sense, but should be given its ordinary, usual "war" within the meaning of the word used In the policy. The judgment is affirmed. and realistic meaning, vis. , actual hostilities between the armed ' No cost, are awarded. forces of two or more nations. ' - WE CONCUR: 2. The World Almanac fc Book of Facts 1974, page 48. 3. 44 Am.' Jur. 2d, Insurance, $1264. 4. In re Morgan"s Estate, Pa. 2 D, fc C. 2d 480. E. R. Callister, Jr., Chief Justice The conflict still raging In Korea is a war in the ordinary and usual meaning of the word, and it was such on March 27, 1952, when the Insured met his untimely death. s ! J. Allan Crockett, Justice In another case4 a old " ;.. " Western Reserve Life Ins. Co. v. Meadows, 261 S.W,2d 554 (Texas 1953), Is a case which fully discusses the question of when a war Is a war. In holding that the insured died "in time of war" within the meaning. of the R. L. Tuckett, Justice policy the court said: Henriod, Justice, concurs in the result. Undoubtedly there may be war or a elate of war with- -. . out a declaration of war by the department of government clothed with the power. Justice Jackson, in his concurring opinion in the steel mills seizure case said: "Of course, a state of war may In fact exist without a formal declaration." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 873, 96 L.Ed. 11 53, 1202-120- 3, 26 A. L.R. 2d 1378; Edwin Bo r chard, discussing under the-titl"When Did the War. Begin", the decision of the United States Circuit Court of Appeals in New York Life Insurance Company, v. Bennion, 10 Cir., 158 F.2d 260, and other decisions, said: "It Is common knowledge that war may ex- 1st without a declaration thereof. " And on the authorities reviewed he expressed this conclusion: "It thus appears that war may be deduced from the circumstances as a fact and may exist Independently of a declaration by Congress." 47 Columbia Law Review, pp. 742, 745, 748, war-maki- ng - Water Service e ... contains . LEGAL BRIEFS XEROXED & PRINTED Alphagraphtes can copy and collate at At per copy. Dale Hougaard 1938 East 7130 South Kathleen Greatorex 5185 . West Moor Rd. 1W0 Paul Garner " East 3010 South Lang Enterprises Overnight Service . 350 South '200 Vest X..M. Brandee 2187 .Hilmott Or. Sylvan L. Crofts 4621 V. Haraon Michael J. Murphy 253 B, 9th South Merilyn McDonald 25 E. 2050 South An early opinion by the Supreme Court of Maine the following: 1 ' . - 28 West 1st South Salt Lake City, Utah 84101 Telephone 3644451 224 South 1300 East Salt Lake City, Utah 84102 2 Telephone 562-828- v ,' i ;:.'-- . "v. , jjwtli '' f' " i |