Bruce v. Lumbermens Mutual Casualty Company, 6956.

Citation222 F.2d 642
Decision Date10 May 1955
Docket NumberNo. 6956.,6956.
PartiesMary G. BRUCE, Administratrix of the Estate of Walter B. Bruce, Deceased, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, a corporation, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Robert N. Simms, Jr., and Clyde A. Douglass, Raleigh, N. C. (John M. Simms, Raleigh, N. C., on brief), for appellant.

Murray Allen, Raleigh, N. C. (R. P. Upchurch, Raleigh, N. C., on brief), for appellee.

Before PARKER, C. J., and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This suit is brought by the Administratrix of Walter B. Bruce, deceased, against Lumbermens Mutual Casualty Company to secure a judgment in the sum of $10,000 under a policy of insurance issued to W. L. Aldridge, Jr. and O'Neals Flying Service, Inc. The declarations in the policy disclose that the business of the assured is the use of aircraft for business and pleasure, instruction of students, and commercial and passenger carrying for hire, and that the aircraft would be used in the United States, Canada and 100 miles into Mexico. The Insurance Company agreed in the policy, amongst other things, to pay on behalf of the insured all sums which the insured should become obligated to pay because of bodily injury sustained by any passenger while in or upon, entering or alighting from the aircraft, caused by accident and arising out of the ownership, maintenance or use of the aircraft.

Liability to a passenger was incurred by the insured on June 1, 1947, during the life of the policy, when Walter B. Bruce, the deceased, was killed while riding as a passenger in a plane covered by the policy. The accident occurred during an air show at the flying field of the insured for which admission was charged. Three planes were sent up, each designed to carry two passengers. Bruce went up with the pilot as a passenger in the lead plane. The plan was that the planes were to be put into spiral spins in a demonstration of safe flying. Such maneuvers are deviations from normal flight, and are known in the industry as aerobatic flights. The plane in which the deceased was a passenger took part in the maneuvers as planned but fell to the ground and crashed, and both occupants were killed.

At the time certain regulations were in effect which had been passed by the Civil Aeronautics Authority, the agency of the United States in charge of the operation of civilian aircraft in the United States under the provisions of 49 U.S.C.A. § 401 et seq. Section 60.9 of Part 50 of the Civil Air Regulations as to Air Traffic Rules defined the term aerobatic as "the performance of any intentional and unnecessary maneuvers involving an abrupt change in altitude of an aircraft, an abnormal altitude, or an abnormal speed." Part 43 of Civilian Air Regulations General Operation Rules contained the following paragraph. "43.409. Aerobatic Flight. No pilot shall intentionally fly an aircraft in aerobatic flight carrying passengers unless all occupants are equipped with approved parachutes." Neither of the occupants of the plane which crashed was equipped with a parachute. The evidence, however, shows that parachutes would have been of no avail to save the lives of the occupants, because the pilot continued to execute the spins until the plane was so near the ground that parachutes could not have been used effectively.

The administratrix of the estate of the deceased brought a wrongful death action against the Flying Service in the Superior Court of Wake County, North Carolina, and secured a judgment in the sum of $15,600 which was affirmed on appeal. Payment of the judgment was demanded and refused, and subsequently the present action against the Insurance Company was brought and resulted in a judgment in its favor. D.C., 127 F. Supp. 124. This appeal of the administratrix ensued.

The defense to the present suit in the trial court and on this appeal is based on the ground that the accident was not covered by the policy, but was within an exclusion of the policy which provided in effect that the policy should not apply "(d) to liability with respect to bodily injury or damage caused by the operation of the aircraft with the knowledge of the named insured; (1) if used for any unlawful purpose, or, during flight or attempt thereat, in violation of any government regulation for civil aviation." There is no doubt that the plane in which the deceased was killed was operated in violation of the quoted regulation, since the pilot did intentionally fly the aircraft in aerobatic flight with a passenger and the occupants were not equipped with approved parachutes. The appellant contends, however, that this exclusion does not apply in the present case (1) because the only exclusions applicable to passengers are found in subsequent provisions of the policy and do not preclude the present claim, and (2) because there was no causal connection between the violation of the regulation and the fatal crash.

The subsequent exclusions in the policy refer in express terms to Coverage A-Bodily Injury Liability, Excluding Passengers, Coverage B-Bodily Injury Liability — Passengers, and Coverage C-Property Damage Liability. Under Coverage B it is provided that the policy does not apply "to liability with respect to bodily injury to any passenger caused by the operation of the aircraft with the knowledge of the named insured: (1) during flight or attempt thereat, between sunset and sunrise unless all night flying requirements...

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