Mutual Benefit Health & Accident Ass'n v. Bowman

• Citation: 99 F.2d 856
• Decision Date: 10 December 1938
• Docket Number: No. 10923.,10923.
• Parties: MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N v. BOWMAN.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

99 F.2d 856 (1938)

MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N v. BOWMAN.

No. 10923.

Circuit Court of Appeals, Eighth Circuit.

November 23, 1938.

Rehearing Denied December 10, 1938.

Philip E. Horan, of Omaha, Neb. (G. J. Cleary and V. J. Skutt, both of Omaha, Neb., on the brief), for appellant.

Hird Stryker, of Omaha, Neb. (Robert E. Cunningham, of El Paso, Tex., on the brief), for appellee.

Before Stone, Gardner, and Thomas, Circuit Judges.

GARDNER, Circuit Judge.

Appellee brought this action against appellant to recover on an accident insurance policy for the accidental death of her husband, Frank D. Bowman, the insured, appellee being the beneficiary named in the policy. A jury was waived and the evidentiary facts were stipulated. Upon the facts so stipulated, the court rendered judgment in favor of the appellee for $3,126.58, from which judgment this appeal is prosecuted. The parties will be referred to as they appeared in the lower court.

The case is before us for the second time. On the appeal as originally presented, we modified and affirmed the judgment. Mutual Benefit Health & Accident Ass'n v. Bowman, 8 Cir., 96 F.2d 7. On the strength of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, the Supreme Court granted certiorari, vacated the judgment of this court, and remanded the cause for redetermination "limited to the question of the right of respondent to recover under the law of New Mexico." The case has been rebriefed and reargued.

It appears from the stipulation of facts that assured met his death in an airplane accident February 10, 1935, in the State of New Mexico. At all times pertinent to the issues involved, he was a resident of New Mexico, and the insurance policy was delivered to him in New Mexico. At the time of the accident resulting in his death, he was a passenger on an airplane being piloted by his son, who was a duly licensed pilot. Assured was a farmer who had never piloted an airplane. He was not in command of, nor a mechanic for, nor a member of the airplane crew. He had never participated in any manner in any business involving the operation, repair, or construction of airplanes, or the transportation of passengers or freight by airplane.

Since our former opinion in this case, the condition of the record as bearing upon the questions presented has been called to our attention. The evidentiary facts were all embodied in a written stipulation. On the trial, counsel for the respective parties, in turn, offered in evidence certain paragraphs or sections of the stipulation so that ultimately all of the stipulation was offered and received in evidence. At the close of the evidence thus offered, the defendant moved the court to dismiss the case "for the reason that it does not involve a sufficient amount to confer jurisdiction upon this court, and the defendant renews its motion to dismiss in that behalf, filed herein March 25, 1936."

There was no motion for judgment, for findings, for declaration of law, nor other motion challenging the sufficiency of the evidence to sustain a judgment in favor of the plaintiff, and the court made no special findings. As this is an action at law, we have, under the Constitution (Amendment VII), U.S.C.A.Const. Amend. 7, no jurisdiction to review or reexamine the facts, but can consider only questions of law. In the absence of a motion for judgment in favor of defendant, or other similar proceeding challenging the sufficiency of the evidence, no question of law is presented for our consideration. Fleischmann Const. Co. v. United States, 270 U.S. 349, 46 S.Ct. 284, 70 L.Ed. 624; Baker Ice Mach. Co. v. Hebert, 8 Cir., 76 F.2d 73; Armstrong v. Metropolitan Life Ins. Co., 8 Cir., 85 F.2d 185; Becher-Barrett-Lockerby Co. v. Northern Pacific Ry. Co., 8 Cir., 89 F.2d 752; Gerlach v. Chicago, R. I. & P. Ry. Co., 8 Cir., 65 F.2d 862; Alliance Life Ins. Co. v. Saliba, 8 Cir., 87 F.2d 937; Roberts v. National Savings Life Ins. Co., 8 Cir., 75 F.2d 530; New York Life Ins. Co. v. Doerksen, 10 Cir., 75 F.2d 96. Through inadvertence of counsel, this condition of the record was not called to our attention when the case was first presented to us, nor was it called to the attention of the Supreme Court. In this condition of the record, the judgment should, we think, be affirmed.

In view of the mandate of the Supreme Court, however, we shall proceed to a consideration of the question of the right of plaintiff to recover under the law of New Mexico.

The provision of the policy in the instant case relied upon by defendant as exempting it from liability, reads as follows: "This policy does not cover death, disability, or other loss * * * received because of or while participating in aeronautics; * * *."

Defendant relies solely upon the decision of the Supreme Court of New Mexico in Sneddon v. Massachusetts Protective Ass'n, 39 N.M. 74, 39 P.2d 1023. The policy there involved contained provision that, "This policy does not cover death or other loss due to disease, whether acquired accidentally or otherwise, or sustained as the result of participation in aviation, aeronautics or subaquatics, * * *."

In that case, the insured met his death in an airplane crash while he was a casual, invited passenger in the airplane. So far as the opinion in that case has any bearing upon the question here involved, it reads as follows: "Appellee contends that the judgment should be sustained because the excepted clause above quoted does not relieve the insurer-appellant for two reasons: First, a casual invited passenger in an airplane is not participating in aviation or aeronautics; second, the exception clause applies only to death due to disease. Appellee maintains that there is no real distinction between the term `engaged in aviation' and `participating in aviation,' and cites cases annotated in 69 A.L.R. 331. The weight of authority is against appellee's contention. See Head v. New York Life Insurance Co. (C.C.A.) 43 F.2d 517, where Judge Orie L. Phillips reviews the authorities; also First National Bank of Chattanooga v. Phœnix Mutual Life Insurance Co. (C.C.A.) 62 F.2d 681. In Peters v. Prudential Insurance Co., 133 Misc. 780, 233 N.Y.S. 500, 502, the court, in distinguishing between the use of the words `engage' and `participate,' said: `If it was intended to except occasional rides in an airplane by a passenger, the author of the language should have employed some other expression, such as "participating in," used in Bew v. Travelers' Ins. Co., 95 N.J.Law, 533, 112 A. 859, 14 A.L.R. 983, Travelers' Ins. Co. v. Peake, 82 Fla. 128, 89 So. 418, and Meredith v. Business Men's Acc. Ass'n of America, 213 Mo.App. 688, 252 S.W. 976. Not having done so, the expression "engaged in aviation" should be given its ordinary meaning and the impression that would be made upon the mind in reading the clause. The word "engaged," as thus employed, gives the impression that it means "something more than occasional participation."' We are constrained to hold that flying in an airplane is participating in aviation or aeronautics."

There was not presented to the court, nor did the court give any consideration to the scope or meaning of the terms "aviation," or "aeronautics." The contention was that the insured was not, under the authorities, "engaged" in aviation, and that under those authorities, the court should hold that he was not "participating" therein; in other words, that no distinction should be made between the terms "engaged" and "participating." The court simply decided as between these terms that the insured, by becoming a casual passenger, "participated." The discussion too, is limited to the terms "engaged in aviation" and "participating in aviation." No reference is made to the term "aeronautics," except in one place, and there the word is used in the alternative, as it is used in the policy in that case.

Plaintiff maintains that there is a distinction between the terms "aviation" and "aeronautics," and this contention seems to be supported by lexicographic authority. Webster's Twentieth-Century Dictionary, published in 1935, defines the word "aeronautics" as, "The doctrine, science or art of sailing in the air by means of a balloon or airship." The same authority defines "aviation," as, "That part of aerial navigation dealing with dynamically-raised or `heavier-than-air' machines."

The policy in the instant case does not purport to exclude from its coverage participation in aviation, but only participation in aeronautics, while the policy involved in the Sneddon...