MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. Moyer

• Decision Date: 11 February 1938
• Docket Number: No. 8583.,8583.
• Citation: MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. Moyer, 94 F.2d 906 (9th Cir. 1938)
• Parties: MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. MOYER.
• Court: U.S. Court of Appeals — Ninth Circuit

94 F.2d 906 (1938)

MUTUAL BEN. HEALTH & ACCIDENT ASS'N v.MOYER.

No. 8583.

Circuit Court of Appeals, Ninth Circuit.

February 11, 1938.

Donahue, Hynes & Hamlin and A. R. Rowell, all of Oakland, Cal., for appellant.

George B. Grigsby, of Juneau, Alaska, and E. Coke Hill, of San Francisco, Cal., for appellee.

Before WILBUR, DENMAN, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

Plaintiff brought action at law in the District Court for Alaska upon a policy of accident insurance issued by the defendant company.The policy, issued in April, 1934, insured plaintiff against accidental injury, but provided that:

"This policy does not cover death, disability, or other loss * * * received because of or while participating in aeronautics. * * *"

In October of the same year, the plaintiff, while a passenger traveling upon a regular commercial transport plane of the Alaska Southern Airways, from Juneau to Chichagoff, was injured in a crash.Upon his giving notice of the accident to the defendant, the latter advised him that his disability was not covered by the policy.

In this action the court(the jury having been discharged) made findings of fact and conclusions of law to the effect that the policy was in effect at the date of the accident and that it covered the accident.Plaintiff was awarded judgment in the sum of $1,452.50, and was allowed attorney's fees of $350.

The first question raised by defendant upon this appeal is whether the injuries in question were exempted from coverage by the quoted provision of the policy.In other words, is a passenger in a commercial plane "participating in aeronautics"?Of the many cases cited by the parties on this question, few involve comparable phraseology or a similar situation to the case at bar.Squarely in point for the defendant is Bew v. Travelers' Ins. Co., 95 N.J.L. 533, 112 A. 859, 860, 14 A.L.R. 983, where the Court of Errors and Appeals of New Jersey held that an insured injured while a passenger on a commercial plane was not within a policy which exempted injuries "while participating in or in consequence of having participated in aeronautics."

The Circuit Court of Appeals for the Eighth Circuit reached the opposite conclusion in Gregory v. Mutual Life Ins. Co., 78 F.2d 522, 523, certiorari denied296 U.S. 635, 56 S.Ct. 157, 80 L.Ed. 451.The court held that a passenger was not participating within the meaning of the term "participation in aeronautics."It was pointed out that the word "aeronautics" ordinarily implies something more than the mere making use of flying facilities; that it connotes the science or art of aerial navigation in which science or art a passenger does not participate any more than a pullman passenger participates in railroading.

Enough has been said to indicate that the term "participating in aeronautics" is an artificial phrase of ambiguous content.Those participating in navigating a plane are very few in comparison with the numbers of passengers carried.Since these latter would certainly be solicited for insurance, it is significant that "passengers" were not explicitly excluded in the aeronautic clause of the policy.Kaufman v. New York Life Ins. Co., 9 Cir., 78 F.2d 398, 402.

As a second ground of reversal, the defendant urges, for the first time on appeal, that the complaint in this case fails to state a cause of action.The complaint is defective in that it fails to plead generally or specifically the performance of conditions precedent to recovery on the insurance contract.However, a defective complaint may be cured by judgment where evidence, introduced without objection, supplies proof of what the complaint failed to allege.Nashua Savings Bank v. Anglo-American Land, Mortgage & Agency Co., 189 U.S. 221, 231, 23 S.Ct. 517, 47 L.Ed. 782.

The defendant asserts that the proof in this case does not show performance of the conditions.The requirements outlined in the policy which the insured must meet in order to recover compensation for injury are (1) payment of premiums; (2) notice of injury to the company within 20 days of the...