DUNLAP, J.
Appellant issued its policy No. E48740, insuring the life of one of its members, Howard A. Rosenau, the son of respondents, in the sum of $1000.00. Respondents are named therein as beneficiaries. The policy contains this provision:
“This policy does not cover death, disability or other loss sustained while in military, naval, or air service of any country at war, except that should death, disability or other loss be sustained while the member is in such service, or within six months after the termination of such service, as a result of wounds, injuries or disease suffered or contracted while in such service, the association shall be liable only for the return of the amounts paid in by the member on this policy.”
The facts in the case are stipulated, among which the following are pertinent to a proper consideration of the question before us, to-wit:
“Insured fulfilled and complied with all the conditions, provisions and stipulations contained in the policy; respondents are named as beneficiaries; insured died on December 7, 1941, and prior to and at the time of his death was a member of the armed forces and in the military service of the United States of America; his death occurred while in such service and as a direct result of an attack upon the Hawaiian Islands by the armed forces of the Imperial Japanese government, which attack occurred on the morning of December 7, 1941; on such date and at the time of the death of the insured no declaration of war existed between the. United States of America and any other nation ; proof of death was made by respondents in telegrams and letters which are set forth in the answer of appellant and are made a part of the stipulations; such documents were accepted by appellant as proving the death of the said Howard A. Rosenau while in the military service of the United States of America; dues and assessments on the insurance policy were paid in the sum of $16.75; at the time of his death this sum was tendered to respondents
upon appellant’s acceptance of proof of death, respondents refused to accept the same; appellants offered to allow judgment in said amount; the sole and only issue to be determined in this action is whether or not the defendant could be relieved of liability of paying the face amount of said membership certificate due to the clause in said policy, relieving the 'defendant of the obligation of payment thereof, such death being sustained while the member is in military, naval or air service of any country at war; a declaration of war between the United States government against Japan was not made until December 8, 1941; no act of aggression or act of war had taken place openly or physically between Japan and the United States of America prior to December 7, 1941; if the death of the said insured was sustained while in the military, naval, or air service of the United States while such country was at war, the appellant is not liable for more than $16.75; on December 7, 1941 and at all times prior thereto, the United States government and the Imperial government of Japan were maintaining diplomatic relations; diplomatic and consular representatives of each of said governments were in residence in the country of the other and no recall of such diplomatic representatives had been effected by either of said governments prior to the Pearl Harbor attack on December 7, 1941; at no time prior to the formal declaration of war on December 8, 1941 against Japan had there been a determination by the political department of the United States government that a condition of war existed in which the United States government was a participant.”
After the trial, the court made its findings and conclusions based on the above stipulations, finding and concluding generally in favor of the respondents and against the appellant’s contentions, and thereafter entered judgment in favor of respondents against appellant, for the sum of $1000.00, the amount of the insurance, with statutory interest, and for respondents’ costs and disbursements.
The appeal is from the judgment.
From the letters and telegrams constituting the proof of death, and which were accepted as such by appellant, it appears the insured was a seaman of the second class, United States Navy, at the time of his death; that he sustained death upholding the highest traditions of the navy in the defense of his country; that he lost his life
in the performance of his duty and in the service of his country.
In its answer appellant sets out that it operates on a limited co-operative mutual insurance plan and does not charge sufficient premiums on its members’ policies to maintain regular legal reserves and surpluses maintained by companies operating on a regular, legal reserve basis, and that to offset the burden of sudden calamity which would necessitate heavy assessments on its members, and for their protection against such burden, the appellant adopted the plan of restrictive coverage, among which is the one set forth above in quotations from the policy.
As stated by appellant in its brief, this case involves the_ construction of the so-called war clause in the policy at issue, and the sole question for decision is whether or not the United States was at war when the Japanese began the unprovoked attack on the Hawaiian Islands on the fateful day of December 7, 1941.
It is well settled that, “The validity of a provision in a life or accident policy, or fraternal benefit certificate, entirely releasing the insurer from, or in some way restricting, its liability under the policy, because of the connection of the insured with military or naval forces or because of his entry into military service, is almost universally recognized.” (Annotation 137 A.L.R., p. 1263.)
The rules to be applied in construction of contracts of this nature are equally well settled in this state and elsewhere, and may well be stated as follows: “All language used to limit insurer’s liability in policy accepted by insured to cover all accidents must be construed strongly against insurer.”
(Jensma v. Sun Life Assur. Co. of Canada,
64 F. (2d) 457, reversing (D.C. 1932);
Jensma v. Benefit Ass’n. of Ry. Employees,
1 Fed. Supp. 951. Certiorari denied (1933)
Sun Life Assur. Co. of Canada v. Jensma,
53 S. Ct. 795, 289 U.S. 763, 77 L. Ed. 1505.) Ambiguous provisions of an insurance policy will be construed most strongly against the insurer, and in favor of the insured.
(Sweaney
&
Smith Co. v. St. Paul Fire & Marine Ins. Co. of St. Paul, Minn.,
35 Ida. 303, 206 P. 178;
Sweaney & Smith Co. v. Hartford Ins. Co. of Hartford, Conn.,
35 Ida. 319, 206 P. 183;
Sweaney & Smith Co. v. Reliance Ins. Co. of Philadelphia, Pa.,
35 Ida. 318, 206 P. 183;
Sweaney & Smith Co. v. American Cent. Ins. Co. of St. Louis, Mo.,
35
Ida. 320, 206 P. 184.) In general, a contract of insurance will be construed strictly against the insurer and liberally in favor of the insured.
(Sant v. Continental Life Ins. Co. of St. Louis, Mo.,
49 Ida. 691, 291 P. 1072.) “Policy susceptible of more than one construction will be construed most favorable to insured.”
(Maryland Casualty Co. v. Boise Street Car Co., 52
Ida. 133, 11 P. (2d) 1090.) “Where language of insurance policy may be given two meanings, one of which permits recovery and other does not, it is to be given construction most favorable to insured.”
(Watkins v. Federal Life Ins. Co.,
54 Ida. 174, 29 P. (2d) 1007.)
In support of the contention this country was at war at the time of the death of the insured, appellant, in part, relies upon the declarations contained in the president’s memorable message to the Congress of December 8, 1941, and the resolution, Formal Declaration of War, by that body of the same date, both taken from the Congressional Record of December 8, 1941, as they appear at p. 9750 of vol. 87, No. 219.
The resolution is entitled “Joint Resolution declaring that a state of war exists between the Imperial Government of Japan and the Government and People of the United States,” etc. The preamble recites that “Whereas, the Imperial Government of Japan has committed unprovoked acts of war,” etc. The pertinent portion here, of the body of the resolution, states, “The state of war between the United States and the Imperial Government of Japan, which has been thrust upon the United States is hereby formally declared.”
While the President’s message of December 8th containing his summation of the many unprovoked, premeditated and dastardly attacks of the previous day, by the military and naval forces of the Imperial Japanese government, on our armed forces and territory, and at a time when we were at peace with that government, was an official act in conformity with his duty as Commander-in-Chief of the army and navy, and paved the way for the declaration of war on our part, which immediately followed, it in itself did not and could not amount to a legal determination of or a declaration of the existence of a state of war on the part of the American people, since the power to declare war is fixed solely in the Congress, by art. 1, sec. 8, of the Federal Constitution, which provides that the Congress has power to declare war.
That this power is exclusive and fixed is well established, one of the most recent decisions on the question being contained in the case of
West v. Palmetto State Life Ins. Co.,
202 S.C. 422, 25 S.E. (2d) 475, 145 A.L.R. 1461, wherein the South Carolina court, in line with the holdings of other courts, said: “An act of Congress is necessary to the commencement of a foreign war, and is in itself a declaration; 1 Kent 55. It fixes the date of the war; Thayer, Const. Cas. 2852.”
In “A Digest of International Law” by John Bassett Moore, vol. 7, p. 153, thé author says: “Much confusion may be avoided by bearing in mind the fact that by the term war is meant not the mere employment of force, but the existence of the legal condition of things in which rights are or may be prosecuted by force. Thus, if two nations declare war one against the other, war exists, though no force whatever may as yet have been employed. On the other hand, force may be employed by one nation against another, as in the case of reprisals, and yet no state of war may arise. In such a case there may be said to be an act of war, but no state of war. The distinction is of the first importance, since, from the moment when a state of war supervenes third parties become subject to the performance of the duties of neutrality as well as to all the inconveniences that result from the exercise of belligerent rights.”
It is true, as pointed out by appellant that the word war, in a broad sense, is used to connote a state or condition of war, warlike activities, fighting with arms between troops, etc., but we are here concerned with the meaning and intent of the word as contained in a formal, legal contract of insurance, a class of contracts which the courts are very frequently called upon to consider and construe, and it seems quite obvious that words and phrases in a contract of this nature, are used and intended to be used in the legal sense. The rule applicable here is stated in 17 C.J.S. (Contracts) p. 717, para. 300, as follows: “A phrase in a contract, if susceptible of two interpretations, must be given that, according with settled law. Where the law gives to certain words an established meaning, this meaning is less readily controlled by the standard of interpretation otherwise applicable than is the meaning of other words.”
The meaning of the word war in its legal sense
has been long understood, and it is likewise well established that courts are bound by declarations of war by the proper department of government, and until there has been such a determination can not take judicial notice of the existence of war. In 67 C.J., p. 336, para. 1, it is said: “War in the legal sense is the state of nations among whom there is an interruption of all pacific relations and a general contestation of arms by authority of the several sovereigns; it is not a mere contest of force, but must be an armed struggle carried on between two political bodies each of which exercises de facto authority over persons within a determinate territory, and its existence is determined by the authorized political department of the government. So, lawful war can never exist without the actual concurrence of the war-making power, but may exist prior to any contest of the armed forces. The courts are bound by a declaration or determination by the proper department of government that a war exists, while until there has been such a declaration or determination the courts cannot take judicial notice of the existence of a war by their government.”
On p. 338 of said volume, para. 4, we find the statement: “A court cannot, however, take judicial notice of a war by its government until there has been some act or declaration creating or recognizing the existence of war by the department of the government clothed with the war-making power. Where war is declared by the sovereign power of a state, it is to be understood that the whole state declares war.” See also
Bishop v. Jones,
28 Tex. 294 (319);
Verano v. DeAngelis Coal Co.,
41 Fed. Supp. 954; In re Wulzen, 235 Fed. 362.
To assume that the contract here was intended to limit liability to the extent contended for by appellants, would have the effect of adding, by application or construction, a meaning thereto, contrary to the intention as expressed by the parties. In other words, we would have to hold in effect that by the use of the phrase “of any country at war” the parties did not intend the use of the phrase, in its accepted legal sense, but, as a matter of fact, intended the contract to limit liability in cases where conditions of war, or conditions which might lead to war, existed. In other words, the court would thus be making a new contract for the parties, by adding to the contract phrases, terms and conditions, which it does not contain. This, of course,
is not one of the functions of a court. See 32 C.J. (Insurance) , p. 1148, para. 258.
In the case of
West v.
Palmetto
State Life Ins. Co.,
202 S.C. 422, 25 S.E. (2d) 475, 145 A.L.R. 1461, supra, the insured was also killed in the sneak attack by Japan at Pearl Harbor on December 7, 1941. The insurance company there urged before the court, its non-liability on the same theory as is argued by appellant hére. The restrictive clause in the policies there involved was almost identical with the clause under consideration here, the only difference being, that there the policies limiting liability, provided the double indemnity feature would not be applicable in the event death should occur while the insured was engaged in military or naval service
in time of war,
while here the clause reads “While in military, naval or air service of any country at war.”
In that well reasoned case, appellant insurance company relied, as does the appellant here, on the New York and Massachusetts cases hereinafter specifically identified in the following quotation from that decision, and the court in examining the judgment against the company, and holding it liable, said: “Appellant relies strongly upon two decisions from other jurisdictions
(Vanderbilt v. Travelers’ Ins. Co.,
112 Misc. 248, 184 N.Y.S. 54, and
Stankus v. New York L. Ins. Co.,
(1942) 312 Mass. 366, 44 N.E. (2d) 687), which upon consideration we do not think are contrary in reason or conclusion to our view of the instant case. They involved respectively, a death upon the S. S. Lusitania, sunk by German submarine long prior to the ■ commencement of our war in 1917-18 against the Central Powers, and a death upon the destroyer Reuben James, lost on patrol in the Atlantic months before the commencement of our present war with Germany. But the policy provisions in question in those cases were quite different from those that are now under consideration. In one the policy excluded liability ‘if the insured’s death resulted from war or any act incident thereto.’ And the other policy denied coverage for ‘death resulting, directly or indirectly, wholly or partly, from war.’ The policies in the present appeal contained restrictive provisions effective when the insured was ‘engaged in military or naval service in time of war,’ as pointed out above, very clearly meaning the engagement of the insured in such service of his country ‘in time of war.’
“And this case was fought out in the court below upon
the question, stated hereinabove, whether our present war with Japan had begun on December 7, 1941, when the insured died as the result of Japanese attack on that day, and the controversy has not concerned itself with whether the insured died as the result, direct or indirect, of just any war, as was the question in the cited cases. Appellant recognized this narrow , view of the issue presented in the opening paragraph of its printed brief and said: ‘The only real question for the consideration of the court is whether on December 7, 1941, the United States of America, in the armed forces of which young West was then serving, was at war . . .’We think it clear that the stated question should be, and it is, answered in the negative.
“We are impressed with respondent’s argument that it would be as logical to contend that the attack by the Emperor’s fliers upon the U.S.S. Panay in the Yangtze river several years before was the beginning of the present war, as to so contend with respect to the sneak surprise attack on Pearl Harbor. The incidents do appear to have differed only in magnitude and location, and the declaration of war more promptly followed the latter. Japan’s pretensive claim of mistake of identity in the case of the Panay has been discredited; it is believed that it was intended to test the will of this nation to resist aggression.”
Appellant also relies upon Prize Cases, 67 U.S. 666, 17 L. Ed. 476, which arose out of the Civil War, and upon
Hamilton v. McClaughry,
136 Fed. 445; the first of these cases deals with the law of nations in effect at that time regarding the right of “prize and capture” during periods of armed conflict. The decision was to the effect the President was acting within his authority under international law then in effect, and sustains the recognized rules of “prize and capture.”
Moreover, in the Prize Cases, Mr. Justice Grier, in pointing out the distinction between the war powers of the President, and of the Congress, under the Constitution, said: “By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a state or any number of states, by virtue of any clause in the Constitution. The Constitution confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-Chief of the Army and Navy of the United States, and
of the militia of the several states when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic state. But by the Acts of Congress of Feb. 28, 1795, ch. 36 (1 Stat. at L., 424), and 3d of March, 1807, ch. 39 (2 Stat. at L., 443), he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of the state or of the United States.”
The. Hamilton case arose out of the Boxer Rebellion and the use of some United States troops in China. Hamilton, a soldier in our forces, was tried and convicted for a military offense committed in China, and the decision was a determination that he was subject to court martial under articles of war then in effect; that since the political and executive department had ordered troops sent to China, the articles of war were applicable.
In these cases the political and executive department of our government had authorized the warlike acts, out of which the litigation arose, while in the instant case no act or recognition had taken place by any department of our government with regard to the existence of war, or warlike activities, at the time of the death of the insured. (In fact, at that very time the two countries were engaged in peaceful negotiations, Japan’s Kuruso, special ambassador of so-called “good will” being even then present in Washington ostensibly trying to obtain a peaceful settlement of the controversies between the two governments.) This, not having been done, this court, under the facts in this case, can not hold that this nation was at war on December 7, 1941, at the time of the death of the insured, or at any time prior to the declaration by the Congress on December 8,1941.
The rule by which we are bound here is well stated in
Bishop v. Jones,
28 Tex. 294 (319), as follows: “ ‘War’ in its legal sense, has been aptly defined to be ‘the state of nations among whom there is an interruption of all pacific relations- and a general contestation of arms authorized by the sovereign.’ It is true it may and has frequently in latter times been commenced and carried on without either a notice or declaration, but still there can be no war by its government of which the court can take judicial knowledge until there
has been some act or declaration creating or recognizing its existence by that department of the government clothed with the war-making power.”
Also in the same case it is said: “War does not exist merely on the suspension of the usual relations of peace. Commerce may be interdicted without producing it. Reprisals and embargoes are forcible measurer of redress, but do not per se constitute war. Hostile attacks and armed invasions of the territory or jurisdiction of a nation, accompanied by the destruction of life and property, by officers acting under the sanction and authority of their governments, however great and flagrant provocations to war, are often atoned for and adjusted without its ensuing.”
The Texas case above cited is referred to in respondent’s brief and their argument based thereon impresses us as being logical and is ás follows: “If the courts recognized a different definition of the word ‘war’ than that set forth in the last case above cited, it would mean that the United States has been constantly at ‘war’ with Japan since the sinking of the gunboat Panay in China in the early 1930’s, and it would mean that Russia and Japan are now at ‘war’ by virtue of the fact that within recent years there have been border patrol clashes and hostilities in some force along the border between Manchuria and Russian Siberia. However, as stated in the Texas case, hostile attacks are often atoned for and adjusted without actual ‘war’ developing. The Panay incident was a hostile attack, but it was atoned for. The border clashes between Russian and Japanese territory were unquestionably armed invasions of the other’s territory. Yet they were atoned for and ‘war’ did not ensue. It was possible, no matter how improbable, that the Pearl Harbor attack could have been atoned for and adjusted without ‘war’ necessarily ensuing.”
Judgment affirmed, with costs to respondents.
Holden, C.J., Givens, J., concur.