Bew v. Travelers' Ins. Co.

• Decision Date: 28 February 1921
• Docket Number: No. 47.,47.
• Parties: BEW v. TRAVELERS' INS. CO.
• Court: New Jersey Supreme Court

112 A. 859

BEW

v. TRAVELERS' INS. CO.

No. 47.

Court of Errors and Appeals of New Jersey.

Feb. 28, 1921.

Appeal from Supreme Court.

Action by Marie F. Bew against the Travelers' Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This was an action at law in the Supreme Court tried at the Atlantic circuit before the court without a jury, and resulted in a nonsuit, upon which judgment was accordingly entered in the Supreme Court. In granting the nonsuit, Judge Donges, who presided, delivered the following opinion:

"The plaintiff is the beneficiary of a policy of insurance entered into June 16, 1914, between James W. Bew and the Travelers' Insurance Company. Premiums were paid when due, and the policy was in force on May 24, 1919, when the assured was killed by the falling of an airplane in which he was riding. The policy was written in the sum of $3,000.

"The policy contained the following condition: 'The insurance hereunder shall not cover any person under the age of eighteen or over the age of sixty-five years, nor shall it cover injuries fatal or nonfatal, sustained by the insured while participating in or in consequence of having participated in aeronautics.'

"Plaintiff insists the following provision of the policy is applicable in this case: 'If such injuries are sustained (1) while a passenger in or on a public conveyance provided by a common carrier for passenger service (including the platform, steps or running board of railway or street railway cars), * * * the company will pay double the amount otherwise payable.'

"Plaintiff seeks to recover the sum of $6,000, being double the amount of the normal indemnity.

"At the conclusion of the plaintiff's case, a motion was made for a nonsuit. The facts were uncontradicted. Defendant offered no testimony. Plaintiff moved for a verdict for plaintiff. It was agreed that if it was concluded that no recovery could be had, the motion for nonsuit should prevail; otherwise, a verdict for plaintiff for the normal amount, or for double the amount thereof, as might be found, should be entered.

"The evidence showed that the insured was an insurance broker at Atlantic City; that the Jaquith Flying Corporation was engaged in the business of carrying passengers for hire in airplanes 'at so much a trip, just to see Atlantic City, and for the novelty of the thing'; that passengers were also taken to New York, Philadelphia and elsewhere as they requested; that the insured had made prior flights; that on the day of his death, the plane left the place of business of the Jaquith Corporation, at the inlet in Atlantic City, with the pilot, Kendrick, and mechanician, named Badger, and flew to the airport, also at Atlantic City; that, at the airport, Badger got out of the plane and solicited persons to take a flight; that Bew entered the plane and occupied the seat beside the pilot vacated by Badger; that Kendrick, as pilot, and Bew, as passenger, left airport and flew back towards the Jaquith place at the inlet; when near the inlet, the plane went into a 'nose dive,' which resulted in a collision with the earth with such violence that both Bew and Kendrick were instantly killed. It does not appear whether the insured entered the machine as a guest, or whether he was to pay for the service. From the testimony it appears that he paid no fare. This is not conclusive that none was to be paid, as it was usual to collect the fare at the conclusion of the flight.

"The first question presented is: Did the insured meet his death 'while participating in or in consequence of having participated in aeronautics?'

"It is well settled that courts are averse to forfeitures, and in case of doubt, or ambiguity, will adopt that construction which will defeat it, if such construction is reasonably deducible from the words or terms used. Hampton v. Hartford Fire Ins. Co., 65 N. J. Law, 265, 47 Atl. 433, 52 L. R. A. 344.

"Where, however, it becomes necessary to construe words or phrases, the ordinary and usual meaning of the words must be sought and given to them. But where apt words are used to express the meaning of the party using them, the courts will not adopt a strained and improbable construction, in order to...