Cramer v. American Alliance Ins. Co.

• Decision Date: 23 April 1949
• Docket Number: 9029.
• Citation: 37 N.W.2d 192,72 S.D. 509
• Parties: CRAMER v. AMERICAN ALLIANCE INS. CO.
• Court: South Dakota Supreme Court

37 N.W.2d 192

72 S.D. 509

CRAMER v. AMERICAN ALLIANCE INS. CO.

No. 9029.

Supreme Court of South Dakota

April 23, 1949

Davenport, Evans & Hurwitz of Sioux Falls, for appellant.

Roy E. Willy, of Sioux Falls, for respondent.

SMITH Presiding Judge.

This action is founded on a policy of insurance. On this appeal from a judgment for defendant the single question for consideration is whether the loss admittedly suffered by plaintiff is covered by the contract.

The facts are not in dispute. On July 25, 1947, with the form of defendant's policy before them, defendant offered to insure plaintiff against loss of and damage to his aircraft on any one of four coverages described in the policy as follows: 'A. All Risk--(Flight and taxiing participating form) B. All Risk--(Flight and taxiing deductible form) C. All Risk--Ground only excluding taxiing--including fire in flight' and 'D. All Risk--Ground only including taxiing and fire in flight' for the following premiums viz., for coverage A $983.95, for coverage B $983.95, for coverage C $285.01, and for coverage D $316.83.

Other portions of the contract explain and extend its coverages as follows:

'Coverages A and B--All risk. Any direct loss of or damage to the aircraft.

'Coverage C--All risk--Ground only excluding taxiing--including fire in flight. Any direct loss of or damage to the aircraft while not in flight or taxiing, and loss sustained in flight by reason of fire, lightning, explosion and self-ignition except following collision but including resultant collision damage.

'Coverage D--All risk--Ground only including taxiing and fire in flight. Any direct loss of or damage to the aircraft while not in flight and loss sustained in flight by reason of fire lightning, explosion and self-ignition except following collision but including resultant collision damage.' A further provision of the policy defines the word 'flight' to mean '* * * the period from the time the aircraft moves forward in taking off or in attempting to take off for air transit, while in the air, and until the aircraft completes its landing and landing run after contact with the land or water.'

Plaintiff originally elected the 'D' type of coverage and received his policy upon payment of a premium of $316.83. Thereafter on August 25, 1947, a change to 'C' coverage was endorsed on his policy in words as follows: 'In consideration of an return premium of $31.82 the coverage afforded under insuring agreement D. All Risk--Ground only including taxiing and fire in flight of this policy is cancelled and coverage is now extended under insuring agreement C. All Risk--Ground only excluding taxiing--including fire in flight * * *'.

On January 30, 1948, as plaintiff was in the act of landing his aircraft and while his landing run was in progress the aircraft collided with a snowbank and broke the propeller and bent both wings. There was no fire or explosion.

Thereafter plaintiff commenced this action. In his complaint he set forth all of the terms of his policy, alleged the facts we have stated and claimed loss and damage in a very substantial sum. Defendant moved to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted, and such proceedings were had as resulted in a judgment of dismissal on the merits. This appeal has been prosecuted by plaintiff.

The plaintiff on the one hand asserts that the language of the policy reading as follows: 'Coverage C--All Risk--Ground only excluding taxiing--including fire in flight. Any direct loss of or damage to the aircraft while not in flight or taxiing, and loss sustained in flight by reason of fire, lightning, explosion and self-ignition except following collision but including resultant collision damage' must receive a construction most favorable to the insured and be held to cover all loss and damage resulting from a collision while in flight.

The defendant, on the other hand, asserts that to so read the policy is to rewrite its terms, and that by plain and unequivocal provisions the policy, so far as collision is concerned, insures against loss and damage only as to a collision while in flight which results from a fire, lightning, explosion, or self-ignition. Such was the view of the trial court.

If a contract of insurance, looking at all of its provisions, is fairly susceptible of two constructions, one of which is more favorable to the insured than the other, the construction most favorable to the insured should be adopted. Lundeen v. Schumacher, 52 S.D. 149, 216 N.W. 883; Ehrke v. North American Life &...