
    BOLOGNA v. NEW YORK LIFE INS. CO.
    No. 18531.
    Court of Appeal of Louisiana. Orleans.
    March 28, 1949.
    Rehearing Denied May 9, 1949.
    See 40 So.2d 533.
    Cicero C. Sessions, of New Orleans, for plaintiff-appellant.
    Phelps, Dunbar, Marks & Claverie and Ashton Phelps, all of New Orleans, for defendant-appellee.
   JANVIER, Judge.

This is a suit by the designated beneficiary in a life insurance policy which contains a stipulation for the payment of double the face amount of the policy should the death of the insured result directly from bodily injury effected through external violent and accidental means.

The policy contained a further stipulation to the effect that the double indemnity provided for in the event of such accidental death should not be payable “if the insured’s death resulted, directly or indirectly, from * * * war or any act incident thereto * * *»

The insured, Anthony A. Bologna, died as the result of an accident which occurred while he was a merchant seaman on a vessel traveling in the North Atlantic Ocean on August 19th, 1943. The named beneficiary demanded payment of the face amount of the policy, together with an additional $1,000 as the double indemnity provided for in the event of accidental death.

The insurer has at all times been willing to pay the face amount due on the policy, but has refused to pay the additional $1,-000, asserting that the death of Bologna resulted directly or indirectly from war or an act incident thereto. Plaintiff was unwilling to accept the face amount and brought this suit. Defendant set forth in its answer that the amount due under the policy was the face value thereof, to wit, $1,000 plus interest and dividends, less, however, a policy loan and interest, making the amount due $945.46, and defendant averred that “it has repeatedly tendered, and does hereby tender again * '* * ” this amount. There was judgment in favor of plaintiff for $945.46, and plaintiff was required in that judgment to pay all costs. Plaintiff has appealed.

Subsequent to the appeal plaintiff accepted the amount awarded her under the judgment appealed from without prejudice to her rights to proceed with her appeal. Thus the sole question now before us is whether or not plaintiff is entitled to the additional $1,000 provided-for in the event of accidental death, or whether she should be denied that recovery on the ground that recovery of that double indemnity is barred by the policy clause which provides that it shall not be payable in the event death results directly or indirectly from war or any act incident thereto.

The plaintiff, prior to her first marriage, was Virginia Porretto. She was the wife of Anthony A. Bologna and was the beneficiary named in the policy, and some time after the death of Bologna, she became the wife of Francis B. Ryan, to whom she is now married. The defendant is New York Life Insurance Company.

There is ho dispute over the facts. They are set forth in a written stipulation from which we quote the following pertinent paragraphs :

“A. At the time of his death on August 19, 1943, insured was, and had been since July 24, 1943, an assistant purser, actively engaged in the United States Maritime Service, and was on the aforesaid date serving in such capacity aboard the SS J. Pinckney Henderson, a United States merchant ship, operated on behalf of the War Shipping Administration by the United Fruit Company, having signed on said vessel July 24, 1943 in Galveston, Texas.
“B. On August 19, 1943, while Anthony A. Bologna was still a member of the crew, the Plenderson was travelling in convoy with 56 other merchant ships and 4 armed escort vessels, bound for the United Kingdom. At about 9:20 P.M., at a point about 300 miles off Nova Scotia, the Henderson, which was at that time in convoy position 42, collided with the SS J. H. Senior, a tanker of United States register, travelling in convoy position 32. That at the time of the said collision, the said convoy was operating under orders from and under the operation control of U. S. Navy Commander Eastern Sea Frontier.
“C. At the -time of the said collision, the Henderson was carrying a war cargo consisting of cotton, magnesium, magnesite, glycerine, rosin, wax, oil, carbon black and other combustibles, and on its deck a cargo of army trucks. The Senior was loaded with high octane gasoline and a deck cargo of war planes. Both ships had 'the usual merchant ship complement of armed guards and guns and ammunition for servicing said armament.
“D. Both the Senior and the Henderson, as well'as the other ships and escorts in the convoy were blacked out, as required by convoy regulations; there was no inter-ship communication, and no fog signals were in operation.
“E. Immediately after the collision, which occurred during a dense fog, with moderate wind and slight swells, fire broke out on both vessels. The high octane aviation gasoline from the Senior spread over both ships and ignited the cargo of the Henderson. There was a series of heavy explosions, and in a few minutes both vessels were afire from stem to stern.
“F. Burning oil from the tanks of the Senior spread over the water. The fire on the Henderson spread rapidly, enveloping the decks and living quarters. Many of her crew and armed guards were trapped below decks and perished. All but three of said crew, who were able to gain the decks, were forced overboard by the fire, and also perished. Only three merchant seamen from the Henderson survived, all of whom suffered personal injuries. The flames aboard the Henderson spread so rapidly that it was impossible to lower a single lifeboat or raft.
“G. The flames and fire were so hot and made the Henderson so hot that four men, including Anthony A. Bologna, jumped over the starboard side into the flaming oil and gasoline. The burning gasoline spread from the Senior not only enveloped both ships but covered the sea surrounding the Henderson and was burning at the time the above mentioned men abandoned the Henderson.
“H. Anthony A. Bologna has never been seen nor heard from since he jumped over the starboard side of the Henderson on August 18, 1943 during the fire resulting from the above mentioned'collision.
“I. The Henderson on July 24, 1943 and at all times to and including August 19, 1943 was of American registry and was flying the American flag.”

Since the stipulated facts show that the death of the insured resulted directly and independently of all causes from bodily injury effected solely “through external, violent and accidental means”, and “occurred within ninety days after such injury * * * ,” the burden of showing that nevertheless the double indemnity is not due was placed upon the defendant by its contention that the accident resulted directly or indirectly from war or any act incident thereto, and the defendant is under the duty of showing that that policy provision is effective under the facts shown here. That the burden is on defendant in such situation is well settled. Cutitto v. Metropolitan Life Ins. Co., 185 La. 161, 168 So. 761; Bankson v. Mutual Ben. Health & Accident Ass’n, 208 La. 1008, 24 So.2d 59; Massachusetts Protective Ass’n, Inc., v. Ferguson, 168 La. 271, 121 So. 863; Heiman v. Pan American Life Ins. Co., 183 La. 1045, 165 So. 195; Lafield v. New York Life Ins. Co., La.App., 9 So.2d 248.

It must also be conceded that such a clause as defendant relies on is a valid and binding one provided it is not ambiguous, and that if the facts stipulated make the clause applicable, then the double indemnity was properly denied. Edwards v. Life & Casualty Ins. Co. of Tennessee, 210 La. 1024, 29 So, 50, 51. See, also, 37 C.J., Life Insurance, Section 46, page 383; 45 C.J.S., Insurance, § 849.

In the Edwards case, the Supreme Court said: “ * * * while all ambiguities must be construed in favor of the insured and against the insurer the courts have no authority to change or alter their terms, under the guise of interpretation, when they are couched in clear and unambiguous language, * * *.”

And the Court further stated: “ * * * that according to the great weight of authority a provision in a policy limiting the liability or exempting the insurer from liability while the insured is engaged in the naval or military service is valid and not against public policy, * * *

There is in reality no disagreement between counsel over the fact that in such policies these clauses limiting or exempting from liability are usually of one or the other of two kinds, — in one group are those policies which contain what is commonly known as a “status” clause; in the other are those containing what is usually referred to as a “result” clause. In the former, recovery is denied if the insured is a member of some particular designated group, such as the Army or the Navy. In the other group it is stipulated that recovery will be denied not because of the status of the insured as a member of any particular group, but if his death results from some particular cause.

And in reality counsel do not disagree over the fact that the clause here is a “re-suit” clause and that, therefore, recovery depends upon the cause of the accident and not upon the status of the insured. Counsel for plaintiff asserts that since the clause is a “result” clause and since recovery of double indemnity may be denied only if death resulted from war or any act incident thereto, recovery cannot be denied since, so counsel declares, not only was the insured not engaged in war but, as a matter of fact, there is nothing to show that war was being waged in the locality in. which the accident occurred. And, furthermore, argues counsel the facts show that the accident resulted not from a war hazard but from a marine risk. He says that the danger of a collision at sea is a marine risk, and that, consequently, whatever may be the surrounding circumstances, the cause of the loss was merely a collision at sea which is a marine risk and nothing more.

We disagree with the contention that there was nothing to show that war was being waged in the North Atlantic at that time. Even if we had no knowledge of what was going on in that area, we think that the facts as stipulated unmistakably portray the existence of armed naval conflict. In the first place, both the vessels which collided “had the usual merchant ship complement of armed guards and guns and ammunition for servicing said armament.” And both were loaded with war material. In addition to the fact that both vessels were armed and loaded with war material, which, it is true, was intended for use in other theatres of war, both, and all other vessels in the convoy, were operating without any signals or inter.ship communications in spite of the fact that they were travelling at night and in a fog. All of these facts, which are set forth in the stipulation, show conclusively, we think, that there was constant fear of an attack in that particular theater. And, as a matter of fact, all 'of the vessels were being escorted at that particular point by four armed escort vessels of the United States Navy, and all of these precautions were being taken under orders of the proper officials of the United States Navy. But even without those stipulations, we could not .bind ourselves to the -facts of which the entire world at that time had knowledge. We realize that there are limitations to those facts of which the judicial mind is permitted to take cognizance. But the existence of a war in which our country is an active participant is a fact of which we must be aware as judges as well as citizens. That we may in fact take judicial notice of the existence of such a war has- often been held. Ex parte Zimmerman, 9 Cir., 132 F.2d 442, 445; State Mutual Insurance Co. v. Harmon, 72 Ga.App. 117, 33 S.E.2d 105, 108; Weisman v. United States, 7 Cir., 271 F. 944, 945; Stankus v. New York Life Ins. Co., 312 Mass. 366, 44 N.E.2d 687, 689; Hooker v. New York Life Ins. Co., 7 Cir., 161 F.2d 852.

Counsel for plaintiff, in his brief, says that; “ * * * If there ever was an actual ‘Battle of the Atlantic’ outside of the columns of the newspapers, there is certainly no scintilla of proof in this record that there was such a battle, and there is absolutely nothing in the record to place the áccident in which insured died even in the area where that imaginary battle is supposed to have occurred, much less to establish that his vessel and he were connected with or engaged in that battle when the accident occurred.”

We find ourselves in violent disagreement with the above statement and we conclude from the judicial knowledge, which, we have and are entitled to have, and from the facts as stipulated that there was a battle which was raging at that time and that the vessel on which the insured was travelling was taking part in that battle just as surely as if there had been firing of guns toward an enemy vessel or from an enemy vessel towards it.

Having then concluded that there was a war in progress which was having effect in that particular locality at that particular time, we pass on to a consideration of the question of whether or not the accident was caused directly or indirectly by that war or any act incident thereto. And here we note the very vigorous contention of counsel for plaintiff that, in this connection, we should apply the reasoning found in many cases in which it was attempted to lay-down a rule from which it might be determined whether any particular loss at sea resulted from a risk of the sea or from a hazard of war.

In the first place, we are well convinced that the exclusion clause relied upon by defendant may be applicable even though the accident which is relied on may not have re-suited from actual combat. We agree with what was said by the Supreme Court of Iowa in Eggena v. New York Life Insurance Company, 236 Iowa 262, 18 N.W.2d 530, 534, in which this same clause was relied on by this same defendant, that: “A clause excluding liability in the event death results directly or indirectly from war, we are satisfied, must apply to a member of the military forces, a member of an army tank crew, on active duty, while in the line of duty, acting under orders from superior officers and carrying out a military assignment as a part of his training during the prosecution of war. The death of insured was the direct result of an act incident t'o war. * * * We can conceive of no part of a soldier’s duties while an active member of a military force, except actual combat, which is more directly traceable to war than the performance of the duties in which deceased was engaged at the time of the fatal accident. This would be the common understanding of an injury caused by war and it was so reported by insured’s superior officer. It was a result of war, and as such the exclusionary clause applied.”

• The insured was not engaged in actual combat in Hooker v. New York Life Insurance Company, 161 F.2d 852, and yet the United States Circuit Court of Appeals for the Seventh Circuit held that because of that same clause there could be no recovery. There the Court said: “* * * The insured at the time of his death (May 19, 1943) and previous thereto1 was a captain in the United States Marines, assigned to Company ‘E,’ Third Tank Battalion, Third Marine Division, which was a part of the 21st Regiment of the United States Marines. On the date of the fatal accident this regiment was stationed in New Zealand and was engaged in war training maneuvers over an area of several square miles, about one mile from the bivouac area near Auckland. On the second or third day of the maneuvers Captain Hooker, while playing the role of a scout, was captured by the ‘enemy’ (Company “E”, Second Battalion, 21st Marines), and turned over to a patrol composed of about six members of Company ‘E,’ to be taken as a ‘prisoner’ to their command post. On this return trip, while the patrol had stopped for rest, Captain Hooker, taking the guards by surprise, made a break to escape. In his effort to do so he ran about one hundred yards with the guards in pursuit, when suddenly in the chase he leaped over a fence, breaking through bushes which were later found to cover the edge of a cliff about 60 or 75 feet deep. He fell over the cliff and was discovered below by the chasing patrol. He was semi-conscious and kept repeating such phrases as ‘have to get away’ and ‘can’t be captured.’ The accident happened about 2:30 p. m. and he died a few hours later from the injuries sustained in the fall.

We deem it of no importance that Bologna was in the Merchant Marine service and not actually in the Armed Forces since it is clear that the clause in question is a “result” clause and not a “status” clause.

In Vanderbilt v. Travelers’ Insurance Company, 235 N.Y. 514, 139 N.E. 715, the insured was a civilian. The important thing is not the status of the insured but it is the cause of the accident which resulted in the loss'. And we call attention to the fact that the cause need not be the proximate cause, but may be something which indirectly results from any incident of war, although we may say here that it is common knowledge that our merchant seamen were as actively engaged in fighting the recent war as were the members of the various services usually referred to as our Armed Forces.

When this case was first argued before us, counsel for plaintiff-appellant placed great reliance on the Hooker case, supra, which at that time had not been decided on appeal. That decision has since been reversed by the United States Court of Appeals for the Seventh Circuit, and the decision as rendered by that Court appears to us to be a tremendous barrier in plaintiff’s path. We quote again from that decision: “ * * * To think, as plaintiff would have us do, that war as used and intended by the parties was confined to combat service is to attribute to the word a meaning that is unnatural and unreal. Combat service is only the culmination of the myriad separate and independent acts all of which are an essential part of war. * * * ”

Again we say that counsel for plaintiff vehemently contends that we should follow certain cases relied on by him as laying down a rule by which it may be determined in any given set of circumstances whether the loss has resulted 'from a risk of war or a peril of the sea and he argues that in every case the risk must be definitely put into one category or into the other. We readily concede that ordinarily a. collision at sea may be classified as a marine accident and may be said to result from‘'a peril of the sea. And possibly if we were called upon to determine whether the death of Bologna resulted proximately from a war occurrence or proximately from a marine accident, we might say what the Supreme Court of the United States said in Queen Insurance Co. of America v. Globe & Rutgers Fire Insurance Co., 263 U.S. 487, 44 S.Ct. 175, 68 L.Ed. 402, and what it had previously said in Morgan v. United States, 14 Wall. 531, 20 L.Ed. 738, that possibly as between the two the accident could be said to have resulted proximately from a marine risk. But that is not the question which is presented here, for here the framers of the policy were careful to say that the double indemnity feature is eliminated not only if the loss results proximately from a war risk, but also if it results directly or indirectly from any incident of war.

Queen Insurance Co. v. Globe & Rutgers Fire Insurance Co, supra, is greatly relied upon by plaintiff, and unless analyzed, seems to be very potent authority in her favor. But we think that that case and Morgan v. United States, supra, are clearly distinguishable. In the first place, as we have said, in each of those cases the question involved was whether the loss should be charged to a war risk or to a marine disaster. In other words, the Court was faced with the necessity of definitely placing the loss into one group or into the other. The Court found it necessary to determine the proximate cause and.could not go further and find whether the loss could be traceable indirectly to any other .cause.

The Queen Insurance Company case may be distinguished from the case at bar on the ground that there the ship had not been required to join the convoy, but had done so because the master thought ■ it best, whereas here the ship was in convoy by military orders. It was also forced to operate completely without lights, completely without fog signals, and completely without intership communications, and all of this because of military orders.

That there is a distinction due to the fact that in the Queen Insurance case the ship was not ordered to- join the convoy is obvious and this distinction was pointed out by Mr. Justice Holmes of the Supreme Court of the United States, who was the author of the opinion in that case and who, in Standard Oil Company of New Jersey v. United States, 267 U.S. 76, 45 S.Ct. 211, 69 L.Ed. 519, plainly said that the jurisprudence reached in the Queen Insurance case was based largely on the fact that the vessel had not been taken from the owners by military orders, but had joined the convoy voluntarily.

It is very obvious, too, that even in the Queen Insurance Company case, Mr. Justice Holmes found it a little difficult to reach the conclusion which he did, for he said [263 U.S. 487, 44 S.Ct. 176]: “* * * There are special reasons for keeping in harmony with the marine insurance laws of England, the great field of this business, and as we could not reverse the decision below without overruling Morgan v. United States, we are of opinion that the decree of the Circuit Court of Appeals must be affirmed. * * * ”

Viewing the matter as a whole, our opinion is that such an exclusion clause is effective whether the insured is a member of the Armed Forces or not and whether or not there is actual combat at the time of the accident, provided the conditions are what they were shown to be in the agreed statement of facts.

. In Morgan v. United States, supra, the Supreme Court of the United States was called upon to definitely place the risk in one category or in the other. The United States had chartered a vessel from a private owner and had agreed that if loss should result from a war risk it would be responsible, but that if loss should result from a marine risk the owner would bear that loss. In that situation the Court found that the stranding, because of putting to sea to avoid enemy, attack, was- the result of a marine peril. The Court held that in that situation it could look only to the proximate cause and.could not “proceed further in order to find out whether the fact of war did not create the exigency * *

■•Every marine collision results from some cause. It may be because the helmsman of one ship is careless, or it may be because there is something defective about the steering apparatus of one or both of the vessels involved, or it may be the result of signals being misunderstood. All of those things and many others constitute what may be termed marine risks and any one of those risks might cause an accident in time of peace. But here the cause of the collision was obviously the fact that it was necessary to operate the vessels without signals and under the conditions already set forth, and those necessities were the direct result of the fact that the country was at war and that as an incident of war the ships were required to travel under those extremely dangerous conditions even though both vessels were heavily loaded with war material, explosive, combustible material at that. That in itself was an incident of war. They were both in. a large convoy operating under military orders. That was an incident of war. They were in a fog at night and were operating without lights, signals, or intership communications. These certainly were incidents of war.

It is argued that if double indemnity should be disallowed in this case, it would be necessary to refuse to allow it in any case no matter how remotely the accident might have resulted from war. It is said, for instance, if in any one of our American cities during a war a blackout had been ordered and as a result two- automobiles had collided, it would have been necessary to hold that the double indemnity feature of such a policy would not be effective. Our answer is that always a reasonable interpretation must be given to the clause in the polity-, and we say exactly what the United States Circuit Court of Appeals said in the Hooker case, supra: “Numerous hypothetical injuries have been cited and many others could be conjured to which the exclusion clause might not be applicable. As to some, no- doubt, a plausible argument can be made that such is the case. Generally, as shown by the cases, they may be classified as injuries not peculiar to the military service but tiróse equally likely to occur in civilian life. In other words, they are not the result of military service or war. We need not attempt, however, to draw the line between those which are excluded and those which are not, and neither do we need to- consider or decide hypothetical or imaginary cases. Our duty is to decide the question presented on the facts of this case and not some other.”

As a matter of fact, in Smith v. New York Life Insurance Co., Ohio Com.Pl. 1948, 86 N.E.2d 340, one of those hypothetical situations suggested by plaintiff was actually presented to the Court. There a civilian war worker in a bomb manufacturing plant in this country was killed when certain war material exploded from an unknown-cause. This accident occurred hundreds of miles from a combat area. The same clause which is presented to us was involved and the Court said:

“Counsel for plaintiff take the position that the exceptions must be drawn close to-the battle front and are not intended to include civilian workmen. This ignores the express provisions of the policy. The exemption is not confined to those in military service nor to the locale or vicinity of battle. The term ‘war’ has a far broader meaning than combat or battle and relates, to civilians, soldiers and sailors alike and to any place irrespective of its proximity to or distance from actual conflict.
* * * * * *
“Certainly there can be but little argument, but that the raising, training, equipping and transportation of troops, and the transporting, either by land, sea or water, of munitions of war for use in the waging of an existing war, are incidents of that war, since they are acts which are not incident to anything but war. Is the actual manufacture and handling of high expío-sives designed exclusively for use in the same war to be considered in any other light than that the same constitute acts incident to war? As stated in the case of Eggena v. New York Life Insurance Co., supra [236 Iowa 262, 18 N.W.2d 530], such acts are incident to nothing other than war, and without war would not occur.
“There is a wide difference between making and handling high explosives, the only use of which is for the prosecution of a war and the farmer who raises food, which ultimately may be used to feed the countries’ soldiers, or cotton which may be used in the manufacture of deadly explosives for use in the prosecution of the war. Such acts may be incident to hundreds of activities other than war.
“In the instant case the insured was directly engaged in the preparation of high explosives for exclusive use in the prosecution of the war in which this country was engaged.
“But for the war he would not have been so engaged, so that the conclusion must be reached that he was engaged in an act incident to war and the explosion which caused his death was likewise an act incident to war and that the provision in the policy for payment of double liability does not apply since the facts of insured’s death came within the plain provisions of the exceptions.”

Counsel cite many other eases, several of which have been decided since this case was first argued before us. And we find that these cases indicate a very definite trend towards a holding that an accident resulting from any dangerous situation created because of the existence of a war may be pointed to as an act incident to war.

In Railey v. United Life & Accident Insurance Co., 26 Ga.App. 269, 106 S.E. 203, a soldier of the United States Army was killed or drowned when the ship on which he was being transported to Europe to take part in the first World War collided with another ship. The Court held that he lost his life as the result of an incident of war.

In Selenack v. Prudential Insurance Co., 160 Pa.Super. 242, 50 A.2d 736, 739, the insured was taking part in training demonstrations in this country and he was in the turret of a tank. In order to avoid another vehicle, the tank was driven over an embankment and Selenack was killed. It was argued that his death did not result from military service in time of war. The Court said: “ * * * Death resulting from military service in time of war comprehends death in actual combat but is not so restricted as to exclude death under other circumstances, * *

In Coxe v. Employers’ Liability Corp., Ltd., 2 K.B. 629, a captain in the English army was assigned to guard a railroad station in London. He was struck by a locomotive and killed. The insurance policy involved covered death by accident but excluded recovery for any fatal accident “directly or indirectly caused by, arising from or traceable to * * * war.” The Court held that recovery should be denied, saying: “ * * * the words which I find it impossible to escape from are ‘directly or indirectly.’ ”

In Thompson, Sr. v. New York Life Insurance Co., Com.Pleas S.C., 13 Life Cases 235, the policy which was involved contained provisions identical with those which confront us. There a lieutenant in the United States Army was a member of the crew of an army plane transporting troops back to this country after the surrender of the Japanese but before Congress declared the war to have terminated. The Court said that the transporting of those troops was “casually related to 'the war * * Surely the transporting of munitions of war is also causally related to war.

In Clarke v. New York Life Insurance Co., Com.Pleas S.C., 13 Life Cases, 239, Colonel Clarke was engaged in administrative duty. He was being transported by plane from Athens, Georgia, to Tampa, Florida. The policy which was involved contained the identical provision which is found in the policy in the case at bar. The Court said his death had resulted from war or some act incident thereto, and that “ * * * If it had not been for the war he would.not have been in the army; he would not have been on this airplane. * *

In Stankus v. New York Life Insurance Co, 312 Mass. 366, 44 N.E.2d 687, 688, we again find a policy provision identical with that before us now. A seaman was lost when the vessel on which he was engaged wa9 sunk by a German torpedo in the North Atlantic. Among other things, the Court said: “ * * * The term ‘war* is not limited, restricted or modified by anything appearing in the policy. It refers to no particular type or kind of war, but applies in general to every situation that ordinary people would commonly regard as war. * *

The opinion goes on to discuss the situation which was then existing in the North Atlantic, the Court saying: “In the light of these reports, the attacks upon shipping in the North Atlantic during the summer and fall of 1941, the damage to two1 of our destroyers and the sinking of a third by submarines were events that arose out of attempts to stop the flow of war materials and supplies to Great Britain. While the nationality of these submarines is not mentioned in the statement of agreed facts, the conclusion is inescapable that they belonged to a nation at war with Great Britain. Great Britain was then at war with Germany and Italy. The President, on September 11, 1941, had stated that German or Italian vessels of war entered these waters at their peril. The sinking by German or Italian submarines of ships belonging to a belligerent nation, or of ships of another nation convoying war materials and supplies to a belligerent nation, is the usual result of waging war by one nation against another, Prize Cases (The Amy Warwick), 2 Black 635, 17 L.Ed. 459, and the torpedoing of the Reuben Janies while convoying vessels engaged in such traffic was an act that arose out of the prosecution of such a war.' It follows that the death of the insured arose directly or indirectly from war and was not a risk covered by the double indemnity provisions of the policy. Vanderbilt v. Travelers’ Ins. Co., 112 Misc. 248, 184 N.Y.S. 54; Id., 235 N.Y. 514, 139 N.E. 715; Letts v. Excess Ins. Co., 32 T.L.R. 361. See Coxe v. Employers’ Liability Assurance Corporation, Ltd., [1916], 2 K.B. 629; Parker v. Anderson, 112 Vt. 371, 25 A.2d 41.”

If the sinking of our vessels in that area at that time was, as we know it was, the result of war, then surely the throwing aside of all precautions in an effort to avoid the possibility of sinking was the direct result of an incident of war and the consequent accidents, this and no doubt others, which resulted, were traceable directly to incidents of war.

Counsel for plaintiff places much reliance on Johnson v. Mutual Life Insurance Co., 154 Ga. 653, 115 S.E. 14. There the insured, a soldier, was on a troop train in the United States. He was killed when his head struck an overhanging girder. The Court held that his death did not result from war or any incident thereto, but the Court very plainly said that there had been no showing that the accident had occurred during wartime. As a matter of fact, the accident occurred almost a year after the declaration of the Armistice which ended World War One. •

Counsel for plaintiff points with great confidence to the decision of the Supreme Court of Louisiana in Edwards v. Life & Casualty Insurance Co. of Tenn., 210 La. 1024, 29 So.2d 50, 53. In that case two policies of insurance were involved. When suit was brought on those two policies, the defendant took the position that the clause which precluded recovery was a status clause; in other words, that the insured was a member of the Armed Forces and, not having obtained' the permission of the insurer and not having paid the additional premium required, had lost the coverage of the policy. Our Supreme Court held that the clauses involved in those policies were “result” clauses insofar as that particular case was concerned. And the Court said that since the coverage of the policies would have been lost only if the death of the insured resulted from a risk of war, there could be recovery since the death had resulted from pneumonia contracted in this country and occurring in a hospital in this country. The Supreme Court said: “* * * it appears there is nothing that would even remotely indicate any causal connection between the insured’s death and the naval service in which he was enrolled at the time of his death * *

In the case before us it will not do to say that because the accident — a collision at sea — might have occurred had there been no war and had the ships been travel-ling under peacetime conditions, such a collision occurred solely and only as the result of a marine risk and was not indirectly the result of war or any act incident thereto. While, as we have said, it cannot be denied that certain marine risks always exist, the risk of collision here was tremendously enhanced by the conditions under which these vessels were travelling and therefore, in our opinion, these conditions were, to say the least, indirectly, if not directly, the cause of the disaster.

We are not impressed by the argument that the exclusion clause relied on by plaintiff is vague in that it does not with definiteness and precision point out just what should be considered as acts incident to war and that, therefore, because of that vagueness the clause should not be enforced.

It is always a dangerous thing to attempt to set forth with definiteness and precision all of the various facts or situations which may be contemplated in such a clause. If it is attempted to include all possible situations then there is always the fear that one or more may be omitted and if so, iit will certainly be argued that by including those set forth there was manifested an intention to exclude all others. It is safer to word such an exclusion in general terms and to leave it to the courts when necessary to determine just whether the facts of any particular case do or do not bring it within the contemplation of the clause. That is what was done here. And our conclusion is that the facts presented make the clause applicable and bar the claim of plaintiff for double indemnity.

Since the defendant tendered the amount which was awarded in the judgment below, it is obvious that the district court was correct in requiring plaintiff to pay the costs.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.

McBRIDE, Judge

(dissenting).

It is my opinion that the plaintiff is entitled to recover the $1,000 under the double indemnity provisions of the policy for two reasons: (1) that the exclusionary clause relied upon by the insurance company is too vague and ambiguous to be invoked, in that it does not with certainty and precision point out just what are to be considered acts incidental to war, and (2) that Bologna’s death resulted not “directly or indirectly from war or any act incident thereto,” but from an incident of a peril of navigation which is prevalent in times of peace as well as in times of war.

I concede that a war risk exclusion is not against public policy, and that such provision will be enforced, for it is a part of the contract between the parties. But when one buys a policy of insurance, and an exclusion from coverage is stipulated in the policy, the exclusion must be couched in crystal-clear language that will inform a reasonable person exactly under what circumstances the insurer is to be absolved from liability in the event of the maturity of the policy. No “catch-all” exclusion clause such as the one we have considered should be applied to such facts as we find involved here. My colleagues are of the opinion .that an insurer who attempts to include all possible situations might overlook one or more, which circumstance might militate against a successful defense by the insurer in certain cases. They say that it is safer for the insurer to word the exclusion in general terms, and to leave it to the courts to determine whether the facts of any given case are within the contemplation of the'limitation of the insurer’s liability. My answer to that is that when one buys life coverage, he does so for the protection of his beneficiary, and is well within his rights in relying on that protection being there when the policy becomes payable. He does not contemplate buying a lawsuit, and is entitled to know exactly in what particulars and under what circumstances and facts the insurer is to escape liability under the exclusion from coverage clause. My thought is that an insurer must spell out the exclusion.

It is a cardinal rule in construing insurance policies that all ambiguities are to be resolved most strongly against the insurance company. No' citation of authority on that point is necessary.

I doubt very much if, at the time the policy was issued (June, 1936, long- before the outbreak of the war), the author of the clause had in mind that the death of a merchant seaman resulting from an unexplained collision between merchant ships was intended to be included in the provisions limiting the liability of the insurance company.

I doubt most seriously that the author of the clause intended that the word "war” would have any meaning other than the popular conception of the word, that is, open combat with an enemy on land, sea, or in the air, or actual contact with the enemy. And assuming that the insured, Bologna, was a reasonable person, it cannot be doubted that he had no other conception of the meaning of the word “war.”

My colleagues believe that the word “war” is to be construed in a broad and technical sense, rather than in its ordinary sense. With this I cannot agree. I can only say that the phraseology of insurance contracts is that chosen by the insurer, and the contract, in a prepared and fixed form, is tendered to the prospective policyholder, who is often without technical training and who rarely accepts the policy with a technician at his elbow.

Frankly, I do not comprehend exactly what the insurer intended to exclude from policy protection. Are the words “incident of war” to embrace incidents which are remotely connected with armed hostilities? If so, how remotely connected? I could recite many hypothetical cases which would be extreme to say the least, but if the arguments of the defendant are to prevail, almost every accidental death occurring during a period of war could be somehow traceable to the war, and be deemed incidental to war.

If the insurance company had intended that a death occurring under circumstances prevalent in the instant case was to be without the policy range of protection, it would have been simple enough for the defendant to have added to the limitation clause “or any act incident to perils of the sea during war.”

I would be unwilling to place a construction on the vague and ambiguous limitation of liability clause so as to have it encompass a case such as the instant one.

It must be borne in mind that Bologna was not engaged with the armed forces, but was a member of the United States Maritime Service, serving as Assistant Purser on a merchant ship. He maintained his civilian status, for it is true that seamen in the Maritime Service have never been classified as other than civilians.

From the birth of navigation, when man discovered that a fallen tree would bear his weight downstream and that by the use of a pole or rough paddle he could check, accelerate, and direct its course, catastrophes on the water have been all too common.

Tire stipulation of facts recites that both vessels had the usual complement of armed guards and guns, with ammunition for servicing said armament — which can be said to be true also of most any vessel that plied the seas during the late war- — - but nonetheless, by carrying such armament, and perhaps having an armed escort, the vessels cannot be taken out of the category of merchant ships. The armed guards and the fore and aft guns were installed on the vessels involved herein, and upon other ships flying the American flag, as a means o-f repelling attacks by submarines, airplanes, and other hostile craft. The armed guards, the guns and ammunition, and the armed escort had nothing whatever to do with Bologna’s accidental death.

The prevailing opinion recites that both vessels were loaded with war materials. It may be said that during war practically all cargo can be classified as war cargo. This would even extend down to vehicles loaded with materials carried to and from war plants and shipyards by the humble ferries plying the Mississippi River. If the argument of the defendant is to prevail, any insured who was a member of the crew of most any kind of water craft could be considered engaged in the war, and his activities would bar recovery of the double indemnity benefits under the exclusionary provisions of the policy contract.

The stipulation of facts recites that the vessels were travelling in convoy on s foggy night without signals or intership communication, but nevertheless, in my opinion, the “SS J. Pinckney Henderson” was not engaged in a warlike operation. In the case of Nordling v. Gibbon et al., D.C., 62 F.Supp. 932, the court was concerned with the death of a merchant seaman who was insured under a policy providing for payment for loss of life and bodily injury “occasioned by capture, seizure, destruction by men of war, piracy, takings at sea, arrest, restraints and detainments and other warlike operations * * The insured was a member of the crew of a vessel sailing from Cuba bound for Baltimore, carrying a cargo of molasses to a distillery at Baltimore to be used to manufacture alcohol which in turn was to be used in the manufacture of powder and other war materials. The ship proceeded under orders of the Navy Department completely blacked-out, and collided with another vessel which was also travelling under black-out conditions by'order of the Navy Department. The ship of whose crew the insured was a member sank, and the insured died. The court was of the opinion that the question involved was whether death was occasioned by “other warlike operations”, and in resolving the question held that the collision did not result from warlike operations.

In Yorkshire Dale Steamship Co., Ltd., v. Ministry of War, Transport, Times Law Reports, June 5, 1942, Vol. LVIII, p. 263, Lord Porter said, at page 269: “ * * * (III) in the case of a ship proceeding on a voyage which is not in itself a war-like operation, absence of lights, sailing in convoy, and zigzagging are not separately or in combination a war-like operation, nor indeed is it a war-like operation to follow the course set by the naval officer in charge of the convoy * * * ”

On Page 267, Lord Wright commented: ■“ * * * Lord Dunedin summed up the position briefly. After observing that the Matiana case (supra) was a clear decision that the escorting vessel of a convoy was engaged in a war-like operation while the escorted vessel was not * * * ”

To quote further from the case, the Lord Chancellor stated, on page 264: “ * * * It is for this reason that sailing without lights, or sailing in convoy, are regarded as circumstances which do not in themselves convert marine risks into war risks * ■ * ”

While there are several cases wherein the construction of “results” clauses identical with or similar to those relied upon by the present insurer were involved, an examination will show that not one contains facts analogous to those of the instant case.

In Eggena v. New York Life Ins. Co., 236 Iowa 262, 18 N.W.2d 530, 533, the insured, a member of the United States Army, was fatally injured when the tank in which he was training fell from a bridge during routine army maneuvers. The court held that military personnel must be trained in the actual field work which will be encountered later in combat, and that a soldier’s training should be considered an essential and integral part of prosecuting a war. The court said: “It was not a hazard of normal life but a hazard of one who was engaged in military service only.”

In Hooker v. New York Life Ins. Co., 161 F.2d 852, 857, decided by the United States Circuit Court of Appeals for the Seventh Circuit, with one judge dissenting, the insured was a captain in the United States Marine Corps and met an accidental death in New Zealand while engaged in war training maneuvers. The court said: “The circumstances surrounding the unfortunate accident which befell insured point unerringly to the conclusion that he was engaged in ‘an act incident to war.’ The total objective of his military service was to prepare himself and those under his command to aid his country in winning the war. Solely for the accomplishment of this objective he and those under his command were stationed in New Zealand, a place designated for their training. They were engaged in an activity under military command as one of the necessary steps in the conduct of the war. The insured was in New Zealand because of war and his activities were because of war and a part of war. The activities in which he was engaged and which resulted in his death were in no wise conumon to a civilian. * * * ” (Italics mine.)

In Vanderbilt v. Travelers Ins. Co., 235 N.Y. 514, 139 N.E. 715, the insured, a civilian, was a passenger on tire British Steamer “Lusitania” and was drowned when the ship was sunk by a torpedo launched from a German submarine. It will be noted that the death resulted from the action of a belligerent enemy, and the court properly held that the sinking of the vessel resulted from an act of war within the contemplation of the clause limiting policy protection, and exonerated the defendant company.

In Coxe v. Employers’ Liab. Assur. Corp., 2 K.B. 926, the policyholder was a captain in the British Army on active duty patroling outposts along a railroad track, and during a black-out was struck by a locomotive and killed. The court held, and I believe properly so, that the death, which occurred while the insured was performing military duties, was an incident of war.

I cannot refrain from making this observation here: If Captain Hooker had been a civilian and a member of the train’s crew, and had been killed through the train colliding with another, then 'I would say that the facts were analogous to those in the Bologna case, and if the court had been confronted with those facts, I am not at all sure that the insurer would have been absolved under the exclusionary clauses contained in the policy.

In Stankus v. New York Life Ins. Co., 312 Mass. 366, 44 N.E.2d 687, 688, the insured was a member of the Navy and a crewman of the “USS Reuben Jones,” a naval vessel which was torpedoed by an enemy submarine, resulting in his death. Here again we find a case where the exclusionary clauses were undoubtedly applied only because death resulted during military service and from enemy action.

In Smith v. New York Life Ins. Co., Ohio Com.Pl. 1948, 86 N.E.2d 340, the insured was a civilian worker in a plant manufacturing bombs to be used by the military. The case was decided by the Court of Common Pleas for Franklin County, Ohio, which is a trial court, and I heartily disagree with the conclusion reached by the judge, believing his opinion to be exceedingly farfetched. A research fails to reveal whether an appeal from the judgment was prosecuted.

Railey v. United Life and Accident Ins. Co., 26 Ga.App. 269, 106 S.E. 203, involved a soldier who was killed when the ship on which he was being transported to Europe to take part in the First World War collided with another vessel. Here again we have the military aspect. The insured was killed while engaged in military duty.

In Selenack v. Prudential Ins. Co., 160 Pa.Super. 242, 50 A.2d 736, the military status of the insured is prominent. He was killed during army training in this country while riding in the turret of a tank.

In Thompson, Sr., v. New York Life Ins. Co., Com.Pl. S.C., 13 Life Cases 235, liability was limited to the premiums paid if death resulted from an act of war or any act incident to war while the insured was in the military service of any country engaged in war, or if death resulted from operating or riding in any kind of aircraft, whether as a passenger or otherwise. The insured, who was a navigator attached to a troop carrier command in the Pacific Area, left Okinawa by plane bound for Iwo Jima on a troop ferrying mission. The plane reported by radio from the vicinity of the Bonin Islands, but was not thereafter heard from and no trace of it was ever found. Under the peculiar provisions of the exclusionary clauses, and under the facts of the case, there is no doubt that the court correctly held that the insured died in the performance of military duties which were incidental to the prosecution of the war.

In Clarke v. New York Life Ins. Co., 13 Life Cases 239, decided by the Court of Common pleas, Sumpter County, S. C., the limitation clauses were similar to those involved in the Thompson case. Clarke was assigned to an administrative post in army aviation, but was accidentally killed while riding in an airplane on active duty. In addition to applying the war risk clause, the court also found that recovery on the policy was barred by virtue of prohibited “aviation activities.”

Thus, it will be seen that in each of those cases which were persuasive to my colleagues, except the Smith and the Vanderbilt cases, the insured was killed while performing duties which were only performed by those in the armed service. In the Vanderbilt case, although the insured was a civilian, he came to his death as the result of an act of war perpetrated by an enemy of the country whose flag was flown by the “Lusitania.” The Smith case, involving a worker in a munitions plant, does not impress me in the least.

Even assuming that the exclusionary clause in Bologna’s policy is free from ambiguity, my opinion is that it can avail the defendant nothing, and that the insurance company is liable for double indemnity. The manner of the insured’s death was such as was likely to happen to a civilian as well as to one engaged in military service. The courts made that point in at least 'two of the cases cited in the majority opinion. In the Hooker case it was said: “The activities in which he was engaged and which resulted in his death were in no wise common to a civilian.”

And in the Eggena case we find: “Here the deceased came to his death riding in an army tank as a member of a crew in training for war, which is not a cause of death common to civilian life.”

Bologna was not in any manner engaged in war within the context and contemplation of the disputed clause. He was pursuing his duties as a merchant seaman while attached to a merchant vessel not engaged in hostilities, and his death was an incident of a peril of navigation and not directly or indirectly as a result of war. The chain of causation is: the collision of the ships, the resulting fire on the “Henderson,” followed by Bologna’s leap into the flaming sea. What caused the vessels to collide is not shown by the record, and it may be that the accident occurred through faulty steering apparatus on .one or both of the vessels involved, or from negligence or misunderstood signals, all of which things constitute what might properly be classified as marine perils, and any one of which might cause ships to collide in broad daylight during times of the most tranquil peace and under the most ideal sailing conditions.

The incident of war factor, in my mind, does not enter the case, and I cannot lead myself to the belief that Bologna’s death was an incident of war. I quite agree with what Judge Dawkins, of the United States District Court, said in Savage v. Sun Life Assur. Co. of Canada, 57 F.Supp. 620, 621, wherein was involved a policy which excluded double indemnity for death resulting from war or any act incident thereto: “The phrase ‘incident thereto’ would seem to contemplate an incident such as the striking of an enemy mine, or the loss of life in the act of .taking off or landing of a military plane from an aircraft carrier, etc.”

My opinion is that the judgment appealed from should be reversed, and that plaintiff .should recover.

I respectfully dissent '  