Before EVANS, MAJOR and MINTON, Circuit Judges.
This appeal is from a summary judgment in favor of the plaintiff and against the defendant in an action predicated upon the double indemnity provision of a life insurance policy. The policy was issued June 3, 1938, upon the life of George K. Hooker in the sum of $10,000, his father, John P. Hooker, being the beneficiary. The annual premium was $315.20 which included $16.80 for the double indemnity. The face amount of the policy has been paid by the defendant and it is the double indemnity, that is the additional $10,000, which is sought to be recovered in this suit. The double indemnity provision, so far as here material, provides:
"* * * upon receipt of due proof * * * that the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means * * *; provided, however, that such double indemnity benefit shall not be payable if the insured's death resulted, directly or indirectly, from * * * war or any act incident thereto."
The sole question for decision is whether "insured's death resulted directly or indurectly, from * * * war or any act incident thereto." Obviously, a decision requires a determination of what was meant and intended by this so-called exclusion clause, as well as its application to the circumstances responsible for the insured's death.
There is no question on the record as to the facts. It is important, however, that they be related and kept in mind. The insured at the time of his death (May 19, 1943) and previous thereto 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 100 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. He was on official duty at the time the accident occurred.
Defendant requests that we take judicial notice of the facts of the existence and progress of World War II, which no doubt we may appropriately do. In connection with such matters, defendant sets forth in some detail the various battles and activities which had taken place prior to the insured's death, which we think unnecessary to relate. Plaintiff urges that we should also take judicial notice that the places and areas mentioned by the defendant were from two to six thousand miles distant from the maneuver area in New Zealand where the insured was accidentally injured.
Plaintiff's contention that the insured's death did not result, directly or indirectly "from * * * war or any act incident thereto" is based upon an extremely narrow and restricted meaning to be attributed to those words. In his brief he gives numerous dictionary definitions of the word "war" and concludes that "war" "in its ordinary and natural meaning, connotes an occurrence in course of active engagement between fighting forces." Consistent with this contention he states: "In a broad sense, of course, the insured as a captain in the Marine Corps was a participant in the war from the time of his enrollment until the time of his death. All of his activities, except perhaps while on leave, were part and parcel of the war program. But all such activities, however, did not constitute engagement or involvement in 'war' or 'act incident thereto,' within the meaning of the war exclusion clause of the double indemnity coverage."
In other words, he contends that "war" must be limited to actual combat and that an "act incident thereto" must be confined to an "act" performed in connection with actual combat duty. With this meaning thus attributed to "war or an act incident thereto," the argument is made that insured's death did not result therefrom. On the other hand, defendant concedes that all accidents occurring during the insured's military service are not excluded. Its position, however, is that the facts and circumstances surrounding the insured's injuries and resultant death show that such injuries were the result of "war or an incident thereto."
The parties have sought to fortify their respective contentions by the citation and discussion of innumerable cases. After studying them, we are satisfied that no good purpose could be served in attempting to review them all. We shall, therefore, confine ourselves to a few of the cases upon which emphasis is placed by the parties.
The only case called to our attention involving the same exclusion clause which the court applied to facts similar to those of the instant case is Eggena v. New York Life Ins. Co., 236 Iowa 262, 18 N.W.2d 530, decided by the Supreme Court of Iowa. In that case the insured was engaged in military training at Camp Chaffee, Arkansas. He was riding a government tank which was proceeding in a training convoy to a bivouac area. As the tank started across a bridge, the right track crashed through the bridge railing and fell to the stream bed below, causing the death of the insured from skull fracture. In that case, as here, the sole question was whether the death of the insured resulted directly or indirectly from war or any act incident thereto. The court, after discussing numerous cases, among other things stated (18 N.W.2d 534): "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 to 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."
Plaintiff in his brief states: "The fallacy of the Eggena case is that it does not limit the war exclusion clause of defendant's policy to engagement or involvement in war, but incorporates therein activities or occurrences accounted for by the existence of a state of war, even though such activities or occurrences do not of themselves form part of the conflict or hostilities."
Plaintiff's criticism of the Eggena case is another illustration of his contention that the exclusion clause must be limited to injuries sustained in actual combat. He also seeks to impair the holding of that case by arguing that three cases cited do not sustain the result reached. These cases are Stankus v. New York Life Ins. Co., 312 Mass. 366, 44 N.E.2d 687; Coxe v. Employers Liability Assurance Corp., 2 K.B. 629, and Vanderbilt v. Travelers Ins. Co., 235 N.Y. 514, 139 N.E. 715, affirming 112 Misc. 248, 184 N.Y.S. 54. While these cases are not precisely in point, we think they lend support to the decision, and in any event they are of no benefit to plaintiff's instant contention.
In the Stankus case [312 Mass. 366, 44 N.E.2d 688], the exclusion clause provided for death resulting "directly or indirectly, from * * * (d) war or any act incident thereto," as in the instant case. The insured was a member of a crew and was lost at sea when his vessel was sunk by a torpedo. At the time of insured's death the United States was not a participant in the then existing war and the plaintiff contended that the word "war" as used in the exclusion clause was not applicable under such circumstances. The court, in deciding against the plaintiff, stated (44 N.E.2d 687, 688): "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 ...