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(112 Misc. Rep. 248)

VANDERBILT et al. v. TRAVELERS' INS. CO. (Supreme Court, Trial Term, New York County. June, 1920.) Insurance Om438—No liability, under policy exempting death resulting from

"war,” for drowning of insured when Lusitania sank.

Under a life insurance policy expressly providing that it did not cover death resulting directly or indirectly or wholly or partly from war, the insurer was not liable for the drowning of insured, a passenger, when the British steamer Lusitania was sunk by torpedoes fired from a submarine of the Imperial German government, and which was a part of its naval force, while a state of war existed and was then being waged between that government and the United Kingdom of Great Britain and Ireland, as "war" is every contention by force between two nations under the authority of their respective governments.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, War.]

Action by Frederick W. Vanderbilt and others, as executors of Alfred G. Vanderbilt, deceased, against the Travelers' Insurance Company. Judgment for defendant.

Roy C. Gasser, of New York City, for plaintiffs.
William J. Moran, of New York City, for defèndant.

MCAVOY, J. The defendant, by its policy of insurance issued in' August of 1903, undertook the liability to pay the principal sum mentioned therein for loss of life of the insured. The insured, Alfred G. Vanderbilt, on the 7th of May, 1915, while the policy of insurance was in full force and effect, was traveling as a passenger and was on board the British steamer Lusitania, then bound from New York to Liverpool, Eng. This vessel was sunk at a point off the coast of Ireland, and when she was so sunk and as a result thereof Alfred G. Vanderbilt lost his life by drowning. The Lusitania was sunk in accordance with instructions of the Imperial German government by torpedoes fired from a submarine vessel which belonged to and was commanded by a commissioned officer of said Imperial German government, and the officers and crew thereof were a part of the naval forces of the Imperial German government. A state of war existed and was then being waged between the United Kingdom of Great Britain and Ireland and the Imperial German government. The Lusitania was subject to call in the war service by the United Kingdom of Great Britain and Ireland as an auxiliary cruiser, but at the time of the sinking she had not been so called, and was engaged as a passenger and freight carrying merchantman, and was unarmed and carried neutrals and noncombatants, together with various sorts of infantry equipment, fittings, and the like. The attack upon her by the German submarine vessel was made without any notice or warning of an intention to sink or attack her, and no opportunity was given to those on board to leave her, and no provision for safeguarding the lives of those upon her was made. The policy contains a clause which, omitting the nonpertinent part, reads in paragraph 4 of its provisos:

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(184 N.Y.S.) “Xor shall this insurance cover

death

resulting, directly or indirectly, wholly or partly, from

war or riot."

It is the plaintiffs' contention that since the transaction violated the common usages and acceptances of principles of enlightened nations, termed the laws of war, the death of the insured may not be ascribed to the excepted condition of the policy. Opposed to this the defendant asserts that, however execrable may be the act of the belligerent, it is none the less, with respect to private persons, a result of war after a formal declaration thereof, and comes within the conditions which would excuse performance under the policy of payment of the sum for which the decedent was insured. These opposing contentions involve a ruling which will define the sense in which the word "war” was applied by the company in the terms of its policy and received by the insured at the time of its execution and acceptance.

The common understanding of the meaning of "war," as related to its likelihood to be the cause of death, and the interpretations given to the usage of such a term in the current of juridical history, would be controlling. In the broad sense the death of the insured on board the Lusitania must be conceded to be a result of war, because it came about in a contest conducted by armed public forces and during a state of affairs during the continuance of which the parties to the war were exercising force each against the other. Doubtless hostilities existing between the two nations may be confined in their nature and extent, be limited as to places, persons, and things; but in the exercise of force by bodies politic against each other for the purpose of coercion, whether the contest is carried on by force or by deceit, or by means covered by rules of conduct which reason deduces as consonant to justice, which ought to regulate the political intercourse of nations both in peace and war, these limitations, designed to protect noncombatants, neutrals, and others wholly disassociated from the armed conflict itself, have been repeatedly offended against and fouted even in civilized times by Christian sovereignties. It would appear that adherence is given the doctrine maintained by Bynkershoek in these instances

everything done against the enemy is lawful; that he may be de stroyed though unarmed and defenseless; that fraud, or even poison may be employed against him; that the most unlimited right is ac quired to his person and property; and that war admits of no limita tions or restraint which any nation is bound to respect in its dealing with the other.

In the narrower sense, war may be regarded as controlled within a solute law, which can be ascertained, applied, and enforced by a body rules properly applicable as occasion arises, and that civilized natio have consented that this body of law should form the rules of the conduct in their relations with each other. This was the view of Ge tilis, whose definition is "bellum est publicorum armorum justa conte tio," and the view of Phillimore (volume 3, p. 82), who says:

"War is not to be considered as an indulgence of blind passions, but as act of deliberate reason.

It is regulated by a code as precise as well understood as that which governs the intercourse of states in t pacific relations to each other. As war is the conflict of societies, tha

*

of corporate bodies, recognized and governed by law in all their actions, war must be and is carried on with reference to rules and principles of law governing that particular mode of social action."

These views, however, of the modern jurists, which have caused to be introduced into modern warfare many benign influences, "which shed a few faint rays upon the gloom of war barely sufficient to disclose its horrors," owe their existence altogether to mutual concessions, and constitute merely voluntary relinquishments of the rights of war. The Rapid, 8 Cranch, 155, 3 L. Ed. 520. Our national Supreme Court early concluded that,

"Every contention by force, between two nations, in external matters, urder authority of their respective governments, is not only war, but public

One whole nation is at war with another whole nation, and all the members of the nation declaring war are authorized to commit hostili. ties against all the members of the other in every place and under every circumstance.” Bas v. Tingy, 4 Dall. 37, 1 L. Ed. 731.

war.

And in Montoya v. United States, 180 U. S. 261, 21 Sup. Ct. 358, 45 L. Ed. 521, the horrors and cruelties accompanying the depredations of Indian tribes through military force were held to constitute a state of war. The court there stated that the acts of a collection of marauders might be treated on the one hand as the performances of "a 'band' whose depredations

are part of a hostile demonstration against the government or settlers in general, or are for the purpose of individual plunder. If their hostile acts are directed against the government, or against all settlers with whom they come in contact, it is evidence of an act of war."

It would seem to follow, therefore, that the argument for a holding that this act was not one of war cannot be admitted. The theory that modern usage and custom, with its more humane and wise policy, "constitutes a rule which acts directly upon the thing itself by its own force and not through the sovereign power is not allowed.” Usage and custom prescribing the restraints imposed for the protection of noncombatants and third persons generally is merely"a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded.” Brown v. United States, opinion by Chief Justice Marshall, 8 Cranch, 110, 3 L. Ed. 504.

The concessions of the parties that the Lusitania was sunk in accordance with instructions of a sovereign government, by the act of a vessel commanded by a commissioned officer of that sovereign government, being then operated by that said officer and its crew, all of whom were part of the naval forces of the said sovereign government, and that war was then being waged by and between Great Britain, the sovereign controlling the Lusitania, and Germany, the sovereign controlling the submarine vessel, control the conclusion which must be reached that the casualty resulted from war and that the consequences of the casualty come within the excepted portions of the policy.

Judgment accordingly.

(184 N.Y.S.)

In re BECKER'S ESTATE.

In re SHULTES. (Surrogate's Court, Schoharie County. September 24, 1920.) L Executors and administrators um 221 (4)--Claims against decedents' es. tates should be established by satisfactory evidence.

Claims against the estates of decedents should be established by satis

factory evidence. 2. Executors and administrators w221 (4) -- Uncontradicted testimony of dis

interested witness not conclusive against estaves.

The rule that a fact testified to by a disinterested witness not discredited, where such evidence does not conflict with other evidence, is to be taken as legally established, has no application to claims against

the estates of deceased persons. 3. Executors and administrators Omw221 (5) --Evidence held to show board

furnished gratuitously to decedent up to given date.

Evidence held to show that board, room, and services were furnished decedent by his aunt, claimant against his estate, gratuitously up to October 1, 1913, so that claim must be disallowed as to items, before such

date. In the matter of the judicial settlement of William Shultes, as executor, etc., of Wesley Becker, late of the town of Wright, Schoharie county, deceased wherein Esther B. Haverly presented claim against the estate. Decree partially for claimant directed.

C. B. Mayham, of Schoharie, for executor:
Alberti Baker, of Schoharie, special guardian, for Becker infants.
C. H. Proper, of Schoharie, for claimant Haverly.
BEEKMAN, S. Esther B. Haverly presented a claim against this

, estate:

For 305 weeks' board, room, washing and mending furnished deceased in his lifetime, and between 1st day of January, 1911, and the 26th day of December, 1916, at $5 per week..

$1,525 00 December 26, 1916. Cash loaned.

15 00 December 26, 1916. Cash advanced to W. Shufelt for bathing and dressing deceased.

1 75

$1,541 75

The claim was rejected by the executor on April 21, 1917, and same came on for trial and determination upon the judicial settlement of the accounts of the executor.

The claimant seeks to establish her claim chiefly by the testimony of her husband, to whom she was married August 4, 1909 (her first husband, Mr. Barkman, having died September 2, 1907), and by Mrs. Bender who was an employé of the claimant for about four years, she being a half-sister of W. Shufelt, who was also a witness for claimant, he having been taken into claimant's family when he was a child, and having made his home with claimant for many years. Another of claimant's witnesses was A. Becker, a nephew, whose testimony shows

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considerable interest in claimant's affairs. The other witnesses for claimant were mainly on incidental details, except Frank Chrysler, who testified to a couple of conversations between claimant and Wesley Becker as having taken place about two years before said decedent's death. Wesley Becker was a nephew of the claimant, and the length of time he made his home with her is detailed by different witnesses.

To comment on the testimony in detail, the fragmentary statements of witnesses, the variations of dates, the testimony of certain witnesses where inconsistencies appear, the testimony of certain other witnesses where certain facts are made reasonably clear and carry conviction, would involve a review of the case well-nigh as long as the record itself. The court has never been so strongly impressed with the importance and advantage of hearing witnesses testify and seeing their demeanor on the witness stand, their candor or lack of candor, the evidence of their interest and zeal on one side or the other, their answers to leading questions and their different versions of the facts on cross-examination, their assertions of periods, dates, and circumstances, where their manner on the stand, their hesitation at times, and their quick answers at others, when angered by counsel, making it evident whether they are weighing their words and answering according to a clear recollection or simply guessing at random.

[1,2] We must consider the case under the well-established rules governing in this class of cases.

“Public policy requires that claims against the estates of the dead should be established by very satisfactory evidence, and the courts should see to it that estates are fairly protected against unfounded and rapacious raids." Van Slooten v. Wheeler, 140 N. Y. 624, 35 N. E. 583.

"The person who could contradict the witness, if his testimony is false, is not living, and courts have uniformly enforced the rule that claims withheld during the life of an alleged debtor, and sought to be enforced after his death, must be established by satisfactory proof.” Kearney v. McKeon, 85 N. Y. 136; Rowland v. Howard, 75 Hun, 4; Hughes v. Davenport, 1 App. Div. 182, 37 N. Y. Supp. 243.

"The rule that a fact testified to by a disinterested witness who is not discredited, and where such evidence does not conflict with other evidence offered upon the trial, is to be taken as legally established, has no application to claims which are sought to be recovered against estates of deceased persons." Walbaum v. Heaney, 104 App. Div. 412, 93 N. Y. Supp. 640.

"Public policy requires that demands against deceased parties must be strictly proved, and to relax that rule would give rise to evils far outweighing the inconveniences resulting from its strict enforcement-inconveniences which could be obviated by the exercise of ordinary care in procuring written or other evidence of contracts not dependent for validity upon the continuance of the life of either party.” Forbes v. Chichester, 55 Hun, 611, 8 N. Y. Supp. 747; Rowland v. Howard, 75 Hun, 1, 26 N. Y. Supp. 1018.

It has been distinctly held that, however valuable the services, one cannot render them with the tacit understanding that no pecuniary charge was to be made therefor, and afterwards recover upon the quantum meruit. Moore v. Moore, 3 Abb. Dec. 303, 21 How. Pr. 211,

"Demands of this character are not unusual in administration cases; and, as the party who had the best means of controverting them has been removed hy death, they are not regarded with any favor, especially where claimant has allowed his claimant to sleep during the lifetime of the decedent. In all cases

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