Bull v. Sun Life Assur. Co.
| Decision Date | 07 April 1944 |
| Docket Number | No. 8369,8370.,8369 |
| Citation | 141 F.2d 456 |
| Parties | BULL v. SUN LIFE ASSUR. CO. OF CANADA (two cases). |
| Court | U.S. Court of Appeals — Seventh Circuit |
Eugene R. Johnson, Frank T. Miller, and Oscar P. Westervelt, all of Peoria, Ill., (Miller, Westervelt, Johnson & Thomason, of Peoria, Ill., of counsel), for Sun Life Assur. Co. of Canada.
Clarence W. Heyl, Oswald D. Vespa, and Chester L. Anderson, all of Peoria, Ill., for Bull.
Before MAJOR, KERNER, and MINTON, Circuit Judges.
Ruth P. Bull recovered judgment in the District Court for the face value of a policy of insurance issued by the defendant, the Sun Life Assurance Company of Canada, upon the life of her husband, Richard Bull. The defendant has appealed from the judgment.
The only question presented here is one of law, that is, the proper construction of the insurance contract. The policy at the time of its issuance was amended by endorsement to provide as follows:
"Death as a result, directly or indirectly, of service, travel, or flight in any species of aircraft, as a passenger or otherwise, is a risk not assumed under this policy. * * *"
The defendant contends that the death of Richard Bull was within the terms of this provision, and that therefore it is not liable. The facts are as follows:
On October 14, 1939, Richard Bull made application to the defendant for the policy of insurance in suit. At that time, he was a Naval Aviation Cadet in training at Pensacola, Florida. The defendant knew that he was an Aviation Cadet and that he intended to continue in aviation after his period of training. Knowing these facts, the defendant required Richard Bull to sign the endorsement containing the aviation provision and to agree that this provision should become a part of the contract of insurance.
On February 5, 1942, Richard Bull, who was then a Lieutenant (j. g.) in the United States Naval Reserve, was commanding officer and alternate pilot of a seaplane which was engaging in routine patrol duty in the South Pacific. Coming across some Japanese ships at anchor in a small harbor, Lieutenant Bull and his crew commenced bombing them, but anti-aircraft fire and Japanese Zeros peppered their plane. The port motor was shot out, gasoline poured into the hull, filling the plane with fumes, and ten or fifteen miles from the scene of the encounter they were forced to make a landing on the water, 500 to 1,000 yards off the island of Amboina, Dutch East Indies. The plane did not crash, but after landing it could not have flown again without repairs. The motors were immediately cut off and for ten minutes the plane was afloat with its anchor overboard. Gasoline was still escaping from the gas tanks into the hull of the plane and spreading upon the surrounding water so that the whole area was in an explosive condition.
Two of the plane's crew, Hargrave and Nelson, with a wounded comrade, debarked from the plane in a rubber boat. Hargrave testified by deposition that Lieutenant Bull was inside the plane the last time that he saw him. Nelson testified by deposition that the last time he saw him, he was outside the plane on the fuselage, trying to launch a rubber boat. While Lieutenant Bull was in that position, attempting to escape from the immobile, disabled plane, a Japanese seaplane dived to within thirty to fifty feet of the crippled plane, strafing it and the water around it. According to Nelson, Lieutenant Bull was exposed to this machine gun fire. To protect themselves, Nelson and Hargrave abandoned their life raft and dived into the water. The first strafing not having sunk the disabled plane, the enemy plane circled and returned for a second attack. While the witnesses were under the water, they heard an explosion, and when they emerged, the area where the plane had been was in flames, with only the tip of a wing still visible. Lieutenant Bull was never seen thereafter. Whether he was on the fuselage at the time of the second strafing does not appear.
The question presented to us is whether Lieutenant Bull met his death, "as a result, directly or indirectly, of service, travel, or flight" in that seaplane. This is a legal question that requires us to construe the contract of insurance. It is elementary that such contracts are strictly construed against the insurance company. Unless the clear and reasonable construction of this contract supports the contention of the defendant, we must affirm the District Court.
Many cases are cited in the briefs, but none of them seems to meet the exact situation presented here.1
Our problem is to determine the intention of the parties. In October, 1939, when this policy was applied for, war was raging in Europe at blitzkrieg tempo. In the Far East, war had been going on for two years, and our relations with Japan were strained. We were making preparations to expand our defense program. Under such circumstances, Lieutenant Bull had entered the armed services of his country. He was a Naval Aviation Cadet when he applied for the policy and when it was issued. The defendant knew that he intended to continue in such service. With such knowledge, the defendant drew the policy and determined the risk it would assume. It wrote its own ticket. The aviation clause we have set forth was inserted in the policy. No war clause was inserted. It is apparent, therefore, that the defendant was willing to and did assume all risks of war not connected with service, travel, or flight in aircraft. Was the death of Lieutenant Bull under the circumstances a risk of war or of aviation? Was his death the result, direct or indirect, of service, travel, or flight in aircraft, or was it a war risk, free from aviation?
It is the defendant's contention that Lieutenant Bull's death was the indirect result of service, travel, or flight in that patrolling seaplane. Let us consider the case from this view. The seaplane had landed and was so disabled that it would never fly again without repairs. It was anchored, and the engines had been stopped for nearly ten minutes. Service, travel, and flight in that plane had come to an end. Lieutenant Bull, as the evidence showed, was out upon the fuselage trying to inflate a rubber boat for the purpose of escape. While he was in that position, the jury had a right to infer, a Japanese plane shot him and from those bullet wounds he died. Was his death a result of aviation or of war? What connection, direct or indirect, did his death have with that disabled aircraft which lay in the water, useful only as a raft? The sole connection was that Lieutenant Bull arrived at this place by way of aircraft. But he was not injured in the arrival. He was not injured by service, travel, or flight in the aircraft. He was killed after those things had terminated. If his arrival at this place by aircraft is to be construed as an indirect cause of his death, then Lieutenant Bull would never have been protected by this policy at any place to which he came by aircraft. Suppose that he had arrived by plane at an airport in peace time and that, as he was crawling out of the plane after landing, a personal enemy had shot and killed him. Would any reasonable man contend that his death was a result, direct or indirect, of service, travel, or flight in that plane?
War risks not connected with aviation were as clearly assumed as this peacetime risk. No construction should be given the contract which would make it applicable if a personal enemy shot the insured but inapplicable if a public enemy shot him. In neither case was death the result, direct or indirect, of service, travel, or flight in aircraft. The parties must have intended that there should somewhere be a point at which the insured would become disengaged from service, travel, or flight in that seaplane. Suppose Lieutenant Bull had reached the island and that the Japs there had shot him. Would that have been a death not covered by the policy? Such a construction would be unreasonable. Suppose that he had succeeded in launching his rubber boat and that at some point between the plane and the shore he had been shot by the Japs. Would that death have been excluded by the provision we are now considering? We think not.
Does the fact that he was upon the fuselage of that wholly disabled, immobilized plane which rested at anchor in the water, useful only as a raft, create such a distinction between this and the foregoing illustrations as to tie up his death with service, travel, or flight in that seaplane? We think not.
We hold that disengagement from service, travel, and flight in that seaplane had taken place in the case at bar, and that Lieutenant Bull's death had no connection, directly or indirectly, with service, travel, or flight in that seaplane within the meaning of the policy. Where the service, travel, and flight in the aircraft had definitely ended, and the only connection the insured had with the plane at the time he met his death at the hands of a strafing Jap was that he had arrived by plane at the place where the Jap shot him, his death was too remote to be considered the result, direct or indirect, of service, travel, or flight in an aircraft. We think the true intent of the parties was to exclude the risks of aviation and to include the risks of war. The death in this case was due solely to dangers inherent in a war risk.
For another reason, we do not think the contention of the defendant is valid. The provision of the policy relied upon as a defense by the defendant becomes operative only where the insured meets "death as a result, directly or indirectly, of service, travel, or flight in any species of aircraft." (Italics ours.) Death in this instance resulted directly from the strafing by the Jap plane. The evidence clearly supports that view. The policy does not say that it shall not apply if the death is contributed to directly or indirectly by the service, travel, or flight in the aircraft. The policy...
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