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CARIUS v. NEW YORK LIFE INSURANCE COMPANY

October 6, 1954

GERALDINE CARIUS, PLAINTIFF,
v.
NEW YORK LIFE INSURANCE COMPANY, A CORPORATION, DEFENDANT.



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 ...


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