The opinion of the court was delivered by: Adair, District Judge.
This cause having been tried before the Court without a jury
upon the pleadings and the Court having examined the stipulation
of facts and the evidence produced by the parties hereby makes
the following findings of fact:
1. This is a civil action between citizens of different states
and the amount in controversy exceeds the value of $3,000,
exclusive of interest and costs.
2. Under effective date of May 29, 1946, the defendant issued
to Marvin W. Carius a policy of life insurance which insured his
life for $10,000 on the ordinary life plan with double indemnity
provisions, and with his father, Henry C. Carius, designated the
beneficiary for $2,000, and his wife, Geraldine Carius, the
designated beneficiary for the balance.
3. The annual premium for the policy was $229.80 and included
an annual premium of $11.40 for the double indemnity provision by
which the defendant agreed to pay the beneficiary, in addition to
the single indemnity, the further sum of $10,000:
"* * * 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
from * * * war or any act incident thereto".
4. Said double indemnity was contained in the body of the
policy and there were no additional provisions relating to war
attached to the policy.
5. Insured, Marvin W. Carius, was a member of the 24th Medical
Battalion of the Armed Forces of the United States of America on
and for several months prior to December 9, 1950, and at that
time held the rank of Major in the Dental Corps of said Armed
Services. On December 9, 1950, Major Carius was in the enemy
territory of North Korea on active duty as a part of the United
States Armed Forces there. At that time and place, Major Carius
was killed in action. Death resulted from multiple gunshot wounds
of head and chest, when a convoy, a part of the 24th Medical
Battalion of which he was a member, was attacked and ambushed by
North Korean enemy. Other battle casualties in the ambush were,
2 officers killed, 7 enlisted men killed, 1 officer wounded and
16 enlisted men wounded. The convoy was in enemy territory when
the attack and ambush occurred.
6. The invasion by armed attack by the North Koreans into the
Republic of Korea at its northermost boundary occurred on June
25, 1950. Thereupon under dates of June 25, 1950 and June 27,
1950, resolutions were adopted by the Security Council of the
United Nations which called upon its members to render assistance
to the Republic of Korea to repel the attack, and on June 27,
1950, the President of the United States ordered our air and sea
forces to give troops of the invaded country cover and support.
7. From June 25, 1950 to July 31, 1950, aided by U.S. planes
and naval craft, the ROKs fought an action which resulted in a
forced withdrawal to the Pusan perimeter in the extreme south.
8. In the meantime, other major United States units, the 1st
Cavalry Division (Infantry), the 24th Division, with which Major
Carius was connected, and the 7th Infantry Division, were
transported from Japan.
9. From September 15, 1950 to November 24, 1950, the South
Korean and United Nations forces engaged the enemy by a
counter-offensive which took the 24th Division, of which Major
Carius was a part, into enemy territory. The 24th Medical
Battalion was bivouaced there on December 9, 1950.
10. On November 24, 1950, the Korean War entered a new phase
when Chinese Communists came to the aid of the North Koreans. Two
huge Chinese armies drove down from the north and the ROKs with
their allies, designated the 8th Army, were forced to retreat
from enemy territory to the environs of the 38th parallel or
northern border of the Republic of South Korea.
11. The various army reports show that Major Carius was a
battle casualty, killed in action on December 9, 1950 of multiple
gunshot wounds, head and chest, in enemy territory in an attack
and ambush by guerrilla forces of the enemy North Koreans.
12. Official reports of the Department of Defense show that our
battle casualties in Korea for the period through midnight,
December 8, 1950, were 33,878. During the next week, the period
in which Major Carius was killed in ...