Arnold v. GLOBE INDEMNITY COMPANY, 18775.

• Decision Date: 25 September 1969
• Docket Number: No. 18775.,18775.
• Citation: 416 F.2d 119
• Parties: Christine B. ARNOLD, Executrix of the Estate of Charles H. Arnold, Deceased, Plaintiff-Appellant, v. GLOBE INDEMNITY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

416 F.2d 119 (1969)

Christine B. ARNOLD, Executrix of the Estate of Charles H. Arnold, Deceased, Plaintiff-Appellant, v. GLOBE INDEMNITY COMPANY, Defendant-Appellee.

No. 18775.

United States Court of Appeals Sixth Circuit.

September 25, 1969.

Woodson T. Wood, Maysville, Ky., Donald L. Wood, Fox, Wood & Wood, Maysville, Ky., on brief for appellant.

William L. Montague, Lexington, Ky., C. W. Swinford, Stoll, Keenon & Park, Lexington, Ky., on brief, for appellee.

Before O'SULLIVAN and PHILLIPS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

McALLISTER, Senior Circuit Judge.

Appellant brought suit, as Executrix of the Estate of her husband, Charles H. Arnold, to recover on a policy of insurance in which appellee Globe Indemnity Company insured his airplane, which was demolished by crashing against the side of a hill or mountain while in flight. At the time of the accident in which Mr. Arnold was killed, as was his employee, Allen H. Doyle, who was piloting the plane, the aircraft was flying from the Tyler Airport in Aberdeen, Ohio, over the Ohio River into Kentucky.

At Tyler Airport at the time of the take-off, which was about 8 A.M. on January 4, 1966, the weather was very foggy with visibility being approximately 100 to 150 feet, and the ceiling being about 50 feet. On the Kentucky side of the river at the place of the crash, which was about 3,000 feet from the northern end of the runway, where the plane became airborne, the weather was bad, cold and foggy. Visibility was about 50 feet, and the ceiling was about the same. It was not possible, at the place of the crash, to even see the Ohio River, and not possible to see across the river. In the town of Maysville, Kentucky, about two miles from the scene of the crash, it was so foggy that visibility was limited to less than one-half of a city block.

Tyler Airport has no contact tower or weather-reporting facilities. Lunken Airport, near Cincinnati, Ohio, is the closest airport with weather facilities, and Tyler Airport is within Lunken's flight control plan area.

At 7:24 A.M. on January 4, 1966, the pilot, Allen Doyle, called Lunken Airport and talked to Miss Virginia Allen, whose basic duty is to give pre-flight briefing to pilots using the federal airways. Doyle filed a flight plan for a trip from Aberdeen, Ohio, to Daytona Beach, Florida, with a fuel stop at Knoxville, Tennessee, and inquired as to weather conditions along the route. He was advised at approximately 7:30 A.M. on that day that the weather conditions at Lunken were ceiling zero, sky obscured and visibility 1/16 of a mile in a fog. Lunken is located on the bank of the Ohio River, as is the Tyler Airport.

Pilot Doyle held a private pilot certificate or license and was qualified to fly under "visual flight conditions only" and was not an instrument-rated pilot, or qualified to fly under instrument conditions.

The insurance policy on which this suit is brought contains coverage for the value of the plane, but such coverage was excluded on "loss * * * during or as a result of its operation; * * * in violation of any governmental regulation for civil aviation applying * * * to instrument flying, or minimum safe altitudes * * *."

We are here concerned with instrumental flight and visual flight as defined in the following Regulations:

"14 CFR Section 1.2:

"In * * * this chapter:

`IFR\' means instrumental flight rules.

`VFR\' means visual flight rules."

"14 CFR Section 1.1

"As used in * * * this chapter:

`IFR conditions\' means weather conditions below the minimum for flight under visual flight rules."

In 14 CFR Section 61.3(f), it is provided:

"Instrument rating. No person may act as pilot in command of an aircraft under instrument flight rules or in weather conditions less than the minimums prescribed for VFR flight unless he holds a current instrument rating or an airline transport pilot certificate."

In 14 CFR Section 91.105, it is provided:

"Basic VFR weather minimums.

"(a) Distance from clouds. Except as provided in Section 91.107, no person may operate an aircraft under VFR * * *

(5) Outside controlled air space at an altitude of 1200 feet or less above the surface, unless the aircraft is clear of clouds.

"(b) Flight visibility. Except as provided in Section 91.107, no person may operate an aircraft under VFR * * *

(3) Outside controlled air space, unless flight visibility is at least one statute mile."

Section 91.107 of 14 CFR, above referred to in Section 91.105 CFR, is concerned with Visual Flight Regulations weather minimums in a controlled zone, and is not applicable to the instant case since Tyler Airport was not in a controlled zone.

According to the above Regulations, the minimum visual flight conditions require that an aircraft shall not be operated outside...