American Homestead Ins. Co. v. Denny, 5-3379

• Court: Arkansas Supreme Court
• Writing for the Court: HARRIS
• Citation: American Homestead Ins. Co. v. Denny, 384 S.W.2d 492, 238 Ark. 749 (Ark. 1964)
• Decision Date: 07 December 1964
• Docket Number: No. 5-3379,5-3379
• Parties: AMERICAN HOMESTEAD INSURANCE COMPANY, Appellant, v. Mrs. Pearl DENNY, Appellee.

Page 492

384 S.W.2d 492

238 Ark. 749

AMERICAN HOMESTEAD INSURANCE COMPANY, Appellant, v. Mrs. Pearl DENNY, Appellee.

No. 5-3379.

Supreme Court of Arkansas.

Dec. 7, 1964.

W. B. Brady, Spitzberg, Bonner, Mitchell & Hays, by Beresford L. Church, Jr., Little Rock, for appellant.

McMath, Leatherman, Woods & Youngdahl, Little Rock, for appellee.

HARRIS, Chief Justice.

This litigation involves the construction of the language of the 'air travel' clause in an insurance policy issued on the life of Ralph L. Denny. The policy is entirely an accident policy, and the company agrees to pay benefits up to $10,000.00 for loss of life or certain bodily injuries sustained by the insured. As to AIR TRAVEL, the company is liable for:

'Injury sustained in consequence of riding as a passenger, and not as an operator or crew member, in or on, boarding or alighting from, or being struck by any aircraft having a current and valid airworthiness certificate or any transport type aircraft operated by the Military Air Transport Service (MATS) of the United States or by the similar air transport service of any duly constituted governmental authority of any recognized country.'

While on temporary duty at Goose Bay Air Base, Labrador, Denny, an Airman Second Class in the United States Air Force, was struck and killed by a propellor of a KC-97G (Stratofreighter). Mrs. Pearl Denny, mother of Ralph, the beneficiary under the policy, made claim to the insurer, American Homestead Insurance Company, appellant herein. The company denied her claim on the ground that Denny was a crew member of the plane, and also on the ground that the plane was of a type excluded under the provisions of the policy. Suit was thereafter instituted, and the court, sitting as a jury, found for Mrs. Denny, holding that 'Airman Ralph Denny was not a crew member of the particular plane that caused his death. Denny was not struck by an 'aircraft having a current and valid airworthiness certificate or any transport type aircraft operated by the Military Air Transport Service (MATS) of the United States,' but that he was fatally injured when struck by an aircraft operated 'by the similar air transport service of any duly constituted governmental authority of any recognized country.'' The judgment was thereupon entered in the principal amount of $10,000.00, together with the sum of $1,200.00 as penalty, and attorneys fees in the amount of $1,000.00. From such judgment appellant has appealed.

For reversal, appellant asserts that Denny was not covered under the policy because (1) he was a crew member of the aircraft which caused his death, and (2) Denny was struck by an aircraft of a type excluded from coverage under the policy.

Inasmuch as we think appellant must prevail under the second contention, we see no necessity to discuss the question of whether he was a crew member of the aircraft which caused his death.

Let it first be said that it is agreed that the term, 'airworthiness certificate' has no application to the facts in this case, since this certificate is only issued to civil aircraft. Likewise, it is admitted by appellee that the KC-97G plane is not a MATS aircraft (and, in fact, the court so found). ¹

At the outset, it might be well to discuss some of the functions of MATS (Military Air Transport Service). Air Force regulations relate that the overall mission of this branch of the Air Force 'is to maintain, in a constant state of readiness, the military airlift system necessary to perform all airlift tasks under emergency conditions assigned by the Joint Chiefs of Staff in approved war plans and appropriate JCS and Air Force guidance documents. MATS will supervise and operate the Air Weather Service, the Air Photographic and Charting Service, the Air Rescue Service, a domestic aeromedical evacuation system, and the 1254th Air Transport Wing, Special Missions.' Additional...