50 U.S.C.A.Appendix, § 891; rent control for Korean War
veterans, 50 U.S.C.A.Appendix, § 1884; industrial aid to Korean
veterans, 22 U.S.C.A. § 1547; automobiles for disabled Korean War
veterans, 38 U.S.C.A. §§ 252a-252e; housing preference for Korean
veterans, 12 U.S.C.A. § 1715e; 42 U.S.C.A. §§ 1575, 1581.
17. By executive order, the President has declared the date of
commencement of combatant activities to be June 27, 1950, and
designated Korea and waters adjacent thereto to be a combat zone,
15 Fed.Reg. 177.
18. Also, by executive order, the President has established the
Bronze Star Medal for award to any person who, while serving in
or with the Armed Forces of the United States, distinguished
himself by services or meritorious achievement or service in
connection with military or naval operations against the enemy of
the United States, 9 Fed.Reg. 1495, and such award was made to
Major Carius posthumously for his meritorious service in Korea
during the period from July 2, 1950 and preceding the date he was
killed in action there.
19. On July 27, 1953, an armistice agreement was executed
between the Commander-in-Chief, United Nations Command, on the
one hand, and the Supreme Commander of the Korean People's Army
and the Commander of the Chinese People's Volunteers, on the
other hand, which established (1) demilitarized zones (2)
concrete arrangements for cease-fire and armistice and (3)
arrangements with relation to exchange of prisoners of war.
20. On August 19, 1953, the Department of Defense issued a
report on U.S. casualties killed, wounded and missing in action
in the Korean area to be a total of 139,834, of whom 25,604 were
killed in action, 103,492 wounded in action, and 10,748 missing
or captured in action.
21. Based on Department of Defense figures, the Court takes
judicial notice of the fact that the total casualties in the
Korean War are over three million, with total casualties in the
ROK and UN side of 1,474,259. At the time the Korean armistice
was executed the Secretary of State issued a statement in which
he stated that "The Chinese and Korean Communist armies have
sustained about 2 million casualties and of the 10,000,000 people
of North Korea, one out of every three has died from the war
22. On December 9, 1950, there was war in Korea; this nation
actually and technically was a part of that war, and was
arraigned on the side of the free nations.
23. The death of Major Carius occurred on December 9, 1950, in
North Korea from multiple gunshot wounds to the head and chest,
suffered in actual combat during the retreat of Republic of Korea
and its allied forces when the United States army convoy of which
Major Carius was a party was attacked in enemy territory by enemy
forces, which consisted of North Korean guerillas. Major Carius,
found with a .45 revolver in his hand in a ditch near his army
jeep, was killed in action in the battle which ensued at said
time and place.
24. The Company, by deletion of a printed phrase which referred
to additional conditions attached to the policy, did not waive
the restriction contained in the body of the policy itself, which
restricted its liability for fatal accidents to those which did
not result from "war or any act incident thereto."
Inasmuch as the defendant has paid the full amount of the
single indemnity or ordinary life coverage of $10,203.63 under
the policy sued upon, it has discharged its liability thereunder.
Conclusions of Law
1. The Court has jurisdiction of the parties and the subject
2. Under the terms of the policy contained in the body of the
policy itself, the defendant's promise to pay the additional
$10,000 of double indemnity was to pay said sum 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 said
double indemnity benefit shall not be payable if the
insured's death resulted from * * * war or any act
which said coverage clause was not waived by deletion of a
reference to additional war conditions contained in an attachment
to the policy.
3. The applicable rule of construction is that the words used
in an insurance contract shall be interpreted in accordance with
their plain, ordinary and popular sense.
4. Application of the facts of this case to the war clause
causes the Court to conclude and determine that the death of
Major Carius on December 9, 1950, from multiple gunshot wounds to
the head and chest, suffered in actual combat during the retreat
of United States forces in North Korea when the United States
Army convoy of which Major Carius was a part was attacked in the
enemy territory of North Korea by enemy forces which consisted of
North Korean guerillas, found on the same day at the scene of
battle with a .45 revolver in his hand, lying in a ditch near his
army jeep and officially reported by the Army as a battle
casualty killed in action which ensued at said time and place, in
the plain, ordinary and popular sense of the words used in the
double indemnity coverage clause contained in the body of the
policy sued upon, was a death which resulted from war or an act
incident to war.
5. Defendant has fully discharged its liability under the
policy sued upon by payment of the single indemnity or ordinary
life coverage thereunder, and, accordingly, judgment should be
rendered herein for the defendant.
In accordance with the foregoing Findings of Fact and
Conclusions of Law, it is hereby ordered, adjudged and decreed,
that judgment be, and the same hereby is, entered for the
defendant; that plaintiff have and recover nothing by her suit;
and that defendant, New York Life Insurance Company, go hence
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