Rosenau v. Ida. Mut. Benefit Assn.

The policy carried by the decedent at the time of his death provides: "This policy does not cover death, disability or other loss sustained while in military, naval, or air service of any country at war, . . . ." The insured, Howard A. Rosenau was at the time of his death an enlisted man in the United States Navy and was killed by the Japanese attack on Pearl Harbor, December 7, 1941. The sole question, therefore, to be determined in this case is: Was the United States "at war" December 7, 1941?

Now, let us see what the official report, of which we take judicial notice (Sec. 16-101, I.C.A.; City of Twin Falls exrel. Cannon v. Koehler, 63 Idaho 562, 123 P.2d 715) says about the matter:

"On the morning of December 7, 1941, Japanese aircraft temporarily disabled every battleship and most of the aircraft in the Hawaiian area. Other naval vessels, both combatant and auxiliary, were put out of action, and certain shore facilities, especially at the naval air stations, Ford Island and Kaneohe Bay, were damaged. Most of these ships are now back with the fleet. The aircraft were all replaced within a few days, and interference with facilities was generally limited to a matter of hours.

"When the Japanese attacked Pearl Harbor, 2 surface ship task forces of the Pacific Fleet were carrying out assigned missions at sea, and 2 such task forces were at their main base following extensive operations at sea. Discounting small craft, 86 ships of the Pacific Fleet were moored at Pearl Harbor. Included in this force were 8 battleships, 7 cruisers, 28 destroyers and 5 submarines. No U.S. aircraft carriers were present.

"As result of the Japanese attack five battleships, the Arizona, Oklahoma, California, Nevada, and West Virginia; three destroyers, the Shaw, Cassin, and Downes; the mine layer Oglala; the target ship Utah, and a large floating drydock were either sunk or damaged so severely that they would serve no military purposes for some time. In addition, three battleships, the Pennsylvania, Maryland, and Tennessee, three cruisers, the Helena, Honolulu, and Raleigh, the seaplane tender Curtiss and the repair ship Vestal were damaged.

. . . .

"Eighty naval aircraft of all types were destroyed by the enemy. In addition, the Army lost 97 planes on Hickam. and Wheeler Fields. Of these 23 were bombers, 66 were fighters, and 8 were other types.

"The most serious American losses were in personnel. As result of the raid on December 7, 1941, 2,117 officers and enlisted men of the Navy and Marine Corps were killed, 960 are still reported as missing and 876 were wounded but survived. The Army casualties were as follows: 226 officers and enlisted men were killed or later died of wounds; 396 were wounded, most of whom have now recovered and have returned to duty.

. . . .

"At 7:55 a.m. on December 7, 1941, Japanese dive bombers swarmed over the Army Air Base, Hickam Field, and the naval air station on Ford Island. A few minutes earlier the Japanese had struck the naval air station at Kaneohe Bay. Bare seconds later enemy torpedo planes and dive bombers swung in from various sectors to concentrate their attack on the heavy ships at Pearl Harbor.

. . . .

"Although the Japanese launched their initial attack as a surprise, battleship ready machine guns opened fire at once and were progressively augmented by the remaining antiaircraft batteries as all hands promptly were called to general quarters. Machine guns brought down two and damaged others of the first wave of torpedo planes. Practically all battleship antiaircraft batteries were firing within 5 minutes; cruisers, within an average time of 4 minutes, and destroyers, opening up machine guns almost immediately, average 7 minutes in bringing all antiaircraft guns into action.

. . . .

"It is difficult to determine the total number of enemy aircraft participating in the raid, but careful analysis of all reports makes it possible to estimate the number as 21 torpedo planes, 48 dive bombers, and 36 horizontal bombers, totalling 105 of all types. Undoubtedly certain fighter planes also were present, but these are not distinguished by types and are included in the above figures.

"The enemy lost 28 aircraft due to Navy action. In addition, three submarines, of 45 tons each, were accounted for.

"The damage suffered by the U.S. Pacific Fleet as result of the Japanese attack on December 7, 1941, was most serious, but the repair job now is nearly completed, and thanks to the inspired and unceasing efforts of the naval and civilian personnel attached to the various repair yards, especially at Pearl Harbor itself, this initial handicap soon will be erased forever." (Navy Department Communiques 1-300 — Office of Public Relations, U.S. Navy, [Gov. Printing Office, 1943] pp. 140-143.)

On the following day, December 8th, the President addressed the Congress, in part, as follows:

"Yesterday, December 7, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan . . .

"The attack yesterday on the Hawaiian Islands has caused severe damage to American naval and military forces. Very many American lives have been lost. In addition American ships have been reported torpedoed on the high seas between San Francisco and Honolulu . . .

"As Commander in Chief of the Army and Navy I have directedthat all measures be taken for our defense.

. . . .

"Hostilities exist. There is no blinking at the fact that our people, our territory, and our interests are in grave danger.

"With confidence in our armed forces — with the unbounded determination of our people — we will gain the inevitable triumph, so help us God.

"I ask that the Congress declare that, since the unprovokedand dastardly attack by Japan on Sunday, December 7, a state ofwar has existed between the United States and the Japanese Empire."

(Italics inserted. Cong. Record, 77th Cong., vol. 87, part 9, pp. 9504-9505.)

It will be observed, from the message of the President, that, so far as the Commander in Chief of the Army and Navy of the United States was concerned, hostilities existed; and that such hostilities commenced when the Japanese armed forces "attacked by naval and air forces" — "the United States of America." It will also be observed that the President asked the Congress to "declare that, since the unprovoked and dastardly attack . . . . on Sunday, December 7, a state of war has existed." We are therefore confronted with the record made by the President, as Commander in Chief of the Army and Navy, that "a state of war has existed . . . since . . . Sunday, December 7th"; and that, "as Commander in Chief of the Army and Navy", he had "directed that all measures be taken for our defense."

Immediately following the message of the President, the following resolution passed both the House and Senate:

"Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it

"Resolved by the Senate and House of Representatives of theUnited States of America in Congress assembled, That the stateof war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States." (Italics inserted. Public Law 328 — 77th Congress — chap. 561, 1st Sess.; 50 U.S.C.A., Appendix (1943), p. 68.)

Congress accordingly declared that "the state of war between the United States and the Imperial Government of Japan . . . has thus been thrust upon the United States" and "is hereby formally declared." In other words, the resolution by Congress was an acknowledgment and recognition of both the state and condition of war, having its inception in the "unprovoked acts of war against the Government and the people of the United States", [Pub. Law 328, 77th Cong. S. J. Res. 116] committed on the previous day, (December 7th) at Pearl Harbor. It seems clear that the Congress did not consider or intend that the resolution was the commencement of the war; it was rather an acknowledgment of the existence of war which commenced the day before. It was official recognition of a status already existent.

Reference to the Congressional Record discloses that most of the members of the House of Representatives, who spoke officially for adoption of the resolution, understood that war already existed "We are at war", said different members. (p. 9529, vol. 87, part 9, Cong. Record.) It is clear from the record, that all the members of Congress thought and understood that they were declaring the existence of an attack and acts of war already committed by the armed forces of the Japanese government; and that they did not consider they were initiating or starting the war on behalf of the United States by the passage of the resolution acknowledging the existence of a state of war.

In the face of these facts and records, we are confronted with the question: What is war? There may be room for doubt and argument as to whether a fight (war) is on as soon as the first blow is struck; but there is little room for doubt that afight (war) is on when the adversary returns blow for blow and the contest of strength and endurance begins.

Webster's New International Dictionary (2d ed., 1941) defines war as:

"1. The state or fact of exerting violence or force against another, now only against a state or other politically organized body, espe., a contest by force between two or more nations or states, carried on for any purpose; armed conflict of sovereign powers; declared and open hostilities . . . When begun by a formal declaration it is a solemn war . . .

"War is said to be that state in which a nation prosecutes its right by force (the Prize Cases, 2 Blackf. 635, 673). Cooley.

"Every contention by force between two nations in external matters, under the authority of their respective governments, is not only war, but public war. (4 U.S. (Dall.) 37, 42,1 L.ed. 731.)

. . .

"3. The state or fact of being in conflict with, or actively opposed to, each other; hostility; strife; antagonism; also, a contest or struggle, for supremacy, revenge, or the like; . ..

"Syn. Conflict, battle."

The general and prevailing legal definition is that war is "an armed contest between nations". Black's Law Dictionary; Prize Cases, 2 Blackf. 635, 652, 666, 67 U.S. 666,17 L. ed. 459; Hamilton v. M'Claughry, 136 F. 445, 449.

Professor Tomlinson, in his article on WAR, in 67 C. J., sec. 4, p. 338, says:

"War may be commenced, or its existence formally recognized, by declaration of one or both of the parties thereto; but, except as otherwise provided by the Hague Convention of 1907, a declaration is unnecessary, and war may commence with the outbreak of actual hostilities, and may exist without a declaration on either side, or prior to a declaration, which, when made, may declare the previousexistence of war and fix the date on which it commenced."

In Stankus v. New York Life Ins. Co., 312 Mass. 366,44 N.E.2d 687, the supreme judicial court of Massachusetts defined war as

"A conflict between the armed forces of two nations under authority of their respective governments would be commonly regarded as war."

Substantially the same views were entertained and adopted by the New York court in Vanderbilt v. Travelers' Ins. Co.,184 N.Y. Supp. 54, 112 Misc. Rep. 248, which case involved liability on an insurance policy carried by one who was drowned by the sinking of the Lusitania.

What seems to me to be the reasonable and rational interpretation and application of the term "war", as used in the policy here involved, is well stated by the annotator in 147 A.L.R., p. 1294, as follows:

"The term 'war' as used in an insurance policy restricting liability for loss of life due to war has been construed to include wars in which the United States was not a formal participant. Thus, in Stankus v. New York L. Ins. Co., (1942)312 Mass. 366, 44 N.E.2d 687, where an action was brought to recover double indemnity benefits under a policy of life insurance providing for the payment of such indemnity 'upon receipt of due proof . . . that the death of the insured resulted directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means . . . provided, however, that such double indemnity shall not be payable if the insured's death resulted directly or indirectly from . . . war or any act incident thereto,' it was held that no recovery could be had upon proof that the insured, a seaman on a United States destroyer, lost his life when his ship was torpedoed while it was convoying merchant ships in the Atlantic Ocean before the formal declaration of war by the United States upon Germany and her allies, the court saying: 'As in the case of any other contract, the words of an insurance policy, in the absence of ambiguity, must be given their usual and ordinary meaning. 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. There is nothing in the policy that indicates that the word was used in any vague, indefinite, or ambiguous sense.' "

Where the armed forces of two sovereign nations strike blows at each other, as occurred at Pearl Harbor on December 7, 1941, and do so under the direction and authority of their respective governments, it is difficult for me to understand why that is not war. Here we have a case where a mass invasion was launched by the Japanese government's armed forces against the United States and its people, killing 2,117 officers and enlisted men of our Navy and Marine Corps, 960 reported missing and 876 wounded; and killing 225 officers and enlisted men in our Army, 396 wounded; and, in addition thereto, destroying 80 of our Naval aircraft, destroying 97 planes at Hickam and Wheeler Fields, wrecking Hickam Field and committing other serious losses. According to the official report, the United States armed force, under the authority of the Commander in Chief of Army and Navy, immediately after the commencement of the attack, entered the combat and succeeded in repelling the invasion. This it seems to me, was "war." The President, as Commander of Chief of the Army and Navy, could not wait for Congress to officially declare war. He accordingly ordered into action all available naval, air and military forces to repel the attempted invasion.

I think the average citizen, who might apply for and procure a life insurance policy, containing the war clause here in question, would undoubtedly think and believe that such a national military status was war; and he would not believe himself insured against such a casualty.

Respondents place their chief reliance on West v. PalmettoState Life Insurance Co., 202 S.C. 422, 25 S.E.2d 475, 145 A.L.R. 1461. Notwithstanding the high esteem which I entertain for the South Carolina court, I am unable to follow or adopt its course of reasoning or conclusion in that case.

Under the contention made by respondents, an insurance policy non-liability war clause can never be available as a defense unless Congress has, previously to the death of the insured, formally declared war — no matter what the President as Commander in Chief may have done in defense of the country against invasion, although evidenced by executive statement and the records of the war department. If that contention were true and were followed by the courts, insurance companies would be issuing policies containing the war clause in question and always be liable on the death of the insured in every undeclared war, no matter how long prosecuted or what the result might be.

Our political history demonstrates that most wars have been commenced and prosecuted without any formal declaration of war; and that war dates from its inception rather than from the time on which some formal declaration to that effect is made. In the Stankus case above cited, the Massachusetts court had the following to say on this point: [312 Mass. 369, 44 N.E.2d at p. 688]

"The plaintiff contends that the policy exempts only a death that resulted from a war in which the United States was a participant, and that as this government was not engaged in any war on October 30, 1941, the death of the insured could not have resulted from a war as that term was employed in the policy. The government of the United States had not at that time declared war upon any nation (see 55 U.S. Sts. at Large, cc. 561, 564, 565, passed December 8, 1941, and December 11, 1941, declaring war upon Japan, Germany and Italy), and no nation had then declared war against us. But the existence of awar is not dependent upon a formal declaration of war. Wars are being waged today that began without any declaration of war.The attack by the Japanese on Pearl Harbor on December 7, 1941,is the latest illustration. This is not a modern method, for it has been said that, from out of one hundred eighteen wars that occurred between 1700 and 1872, in hardly ten did formal declarations precede the commencement of hostilities." (Italics inserted.)

It is my conclusion, that the judgment in this case should be reversed.

Budge, J., concurs in the foregoing dissent.