Houston Fire & Casualty Insurance Co. v. Ivens

Citation338 F.2d 452
Decision Date29 October 1964
Docket NumberNo. 20792.,20792.
PartiesHOUSTON FIRE AND CASUALTY INSURANCE COMPANY, Appellant, v. Reba IVENS, as Administratrix of the Estate of Harold Ivens, Deceased, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Harry T. Gray, Jacksonville, Fla., Edward W. Killorin, E. Smythe Gambrell, Atlanta, Ga., Francis P. Conroy, Delbridge L. Gibbs, Jacksonville, Fla., John K. Train, III, Atlanta, Ga., for appellant, Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, Fla., Gambrell, Harlan, Russell, Moye & Richardson, Atlanta, Ga., of counsel.

George A. Pierce, Jacksonville, Fla., Alan R. Schwartz, Miami, Fla., Marion R. Shepard, John E. Mathews, Jacksonville, Fla., Walter H. Beckham, Miami, Fla., Noah H. Jenerette, Jr., Mathews, Osborne & Ehrlich, Jacksonville, Fla., Nichols, Gaither, Beckham, Colson & Spence, Miami, Fla., for appellees.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and McRAE, District Judge.

McRAE, District Judge.

Houston Fire and Casualty Insurance Company ("Houston") brought suit for a declaratory judgment against the defendants, requesting a determination of its liability under a policy of aviation insurance issued to its assured, Harold Ivens ("Ivens"), with respect to an airplane crash of the Beechcraft airplane described in the policy and operated by Ivens.

The crash, which occurred on February 24, 1961, near Aiken, South Carolina, resulted in the death of Ivens, the pilot, and John Z. N. Fletcher ("Fletcher") and Earl Douglas Taylor, who were passengers in the airplane.

Defendants are the personal representatives of the victims of the crash, and N. M. Ulsch & Son, Inc. ("Company"), an additional assured, whose relationship to Ivens and Fletcher will be hereinafter described.

It was the contention of Houston that the trip on which the accident occurred was an operation for which a charge was made, in violation of the following provision of the policy:

"Item 5. Purposes. This policy applies only while the aircraft is used for the purposes classified as pleasure and business (a) the terms `Pleasure and Business\' is defined as personal, pleasure, family and business uses excluding any operation for which a charge is made; * * *". (Emphasis added.)

The District Court entered "Summary Judgment, and Summary Final Judgment" for the defendants severally on the basis of two conclusions: (a) that the testimony offered by Houston to prove that the operation of the airplane was one for which a charge was made could not be received in evidence because of the Florida "Dead Man's Statute", F.S. 90.05, F.S.A.;1 and (b) that even if the testimony were received in evidence, such testimony, together with all reasonable inferences to be drawn from it, failed to establish that a charge was made for the fatal flight. Appeal was taken by Houston from this final judgment.

Houston conceded in the court below that the sole proof to be offered in establishing that the fatal flight was an operation for which a charge was made was a telephone conversation between N. M. Ulsch, Sr. ("Ulsch") and Ivens.

Proof was offered, by deposition of Ulsch, that he was president and principal stockholder of the Company; that the Company was the distributor in Florida of sanitation equipment manufactured by Dempster Brothers of Knoxville, Tennessee; that during the period 1960-61, Ivens was "an independent contractor working independently" for the Company in making sales in Florida of Dempster Brothers products strictly on a commission basis; that Fletcher, representing "Waste Control of Florida", was a customer of the Company.

Subject to objection by the attorney for the administratrix of the estate of Ivens, based upon the contention that admission of the testimony was barred by the Florida "Dead Man's Statute", Ulsch further testified that about four days before the fatal flight Ivens in Orlando telephoned Ulsch in Jacksonville and told Ulsch that he had agreed to take Fletcher from Jacksonville to Knoxville, in the airplane owned and operated by Ivens, for the purpose of enabling Fletcher to get a piece of equipment which Fletcher had bought from the Company prior to the time that Ivens became a representative of the Company in Florida. Ivens asked Ulsch if he would "contribute a little towards the gasolene money that it was going to take to carry Mr. Fletcher from Jacksonville to Knoxville, and I asked him how much did it take." Ivens said that the gas would cost about $10.00 per hour flying time and that the round trip would take about six hours for a total gasolene cost of $60.00. Ulsch told Ivens that he would be glad to contribute to the cost of the gasolene, as Ivens "was not getting any commission on this * * *". Ulsch further stated in his deposition that he had not agreed to contribute to the cost of the gasolene from Orlando to Jacksonville, and that he had not agreed to "help pay the expenses of the flight"; on the contrary, h...

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