Day v. Equitable Life Assur. Soc. of the United States
| Decision Date | 07 April 1936 |
| Docket Number | No. 1340.,1340. |
| Citation | 83 F.2d 147 |
| Parties | DAY v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John T. Adams, Philip Hornbein, and Theodore Epstein, all of Denver, Colo., for appellant.
Percy A. Robinson and Carl C. Hearnsberger, both of Denver, Colo., for appellee.
Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.
This action at law on the double indemnity clause of a life insurance policy was brought in the state court; after proper removal, a bill of particulars was filed stating in detail the circumstances of the accident. Defendant thereupon demurred to the complaint so supplemented; the trial court sustained the demurrer and, plaintiff declining to plead further, judgment was entered for the defendant. This appeal is from that judgment.
By the clause in question, for a separate premium, defendant agreed to pay an additional $5,000 if death resulted solely from bodily injuries caused directly by accidental means, "and shall not be the result of or be caused directly or indirectly * * * by engaging as a passenger or otherwise in submarine or aeronautic expeditions."
If insured's death was caused by his engaging in an aeronautic expedition, there is no liability; if not, there is. The facts alleged are:
"The insured was a passenger in an aeroplane in the City and County of Denver, State of Colorado, and that during said flight said aeroplane accidentally crashed to earth and as a result of which the said insured met his instantaneous death."
The bill of particulars discloses that one Reed, a friend of Day's, brought a privately owned plane to Denver some ten days before the accident; neither the plane nor Reed was licensed to carry passengers for hire; plaintiff does not know whether Reed was licensed to carry any passengers, but alleges that he had had fifty hours of flying experience. The plane was airworthy. Reed took Day up for a pleasure flight over the airport and the outskirts of Denver when there were no unfavorable weather conditions. Day was a guest only and had no part in handling the plane. Reed did a simple loop and the ship had straightened out when it went into the fatal spin.
As words are ordinarily used, can it fairly be said that a pleasure trip over an airport on a pleasant day is an "expedition"? The majority of the court believe not. It is difficult for us to believe that the ordinary man, in speaking of such a flight, would say that he had gone on an "expedition." None of us has ever heard any one use that expression when speaking of an ordinary trip in a plane. It must be borne in mind that the language of a policy is read when the policy is bought as well as when there is a loss. The mythical average man when offered this policy would not, as we see it, think that an ordinary airplane trip was excluded by the formidable words "submarine or aeronautic expeditions." On the contrary, the words carry an implication of a military exploit or of an exploration into remote regions or over new routes. If it were intended, when the policy was drafted and offered for sale, to exclude from coverage every loss resulting from an airplane trip or flight, it is believed that counsel drafting the clause could have found language less apt to mislead the buying public than such a redoubtable phrase as this. Judge Gardner's language in Gregory v. Mutual Life Ins. Co. of New York (C.C.A.8) 78 F.(2d) 522, 524, is apposite:
If, when this policy was purchased, Mr. Day had looked at the dictionaries to ascertain whether an ordinary ride in an airplane was excluded from his coverage by the menacing expression "submarine or aeronautic expeditions," he would readily have concluded that a short or casual pleasure trip was not excluded. Webster's International defines expedition as "An important journey or excursion for a specific purpose." Funk & Wagnall's "A journey, march, or voyage, generally of several or many persons, for a definite purpose." The Oxford English Dictionary as "A journey, voyage, or excursion made for some definite purpose." The Century as "An excursion, journey, or voyage made by a company or body of persons for a specific purpose." Webster's example is "as, a military or exploring expedition"; the Century as "Wilke's exploring expedition; a trading expedition to the African Coast." In no dictionary have we found a definition which fairly embraces the fatal trip taken here.
The rising tide of airplane travel and the efforts of life and accident companies to avoid too great a hazard without curtailing too seriously their underwriting have brought the general question before the courts many times. Our own court, in Head v. New York Life Ins. Co., 43 F.(2d) 517, 520, said: "The word `engage' connotes more than a single act or a single transaction; it involves some continuity of action." No such continuity is here alleged. In Gits v. New York Life Ins. Co. (C.C.A.7) 32 F.(2d) 7, it was held that the clause "engaging in submarine or aeronautic operations" did not embrace a passenger on a pleasure flight. In Pittman v. Lamar Life Ins. Co. (C.C.A.5) 17 F.(2d) 370, the insured was walking slowly around a plane in which he owned a half interest and which was out of repair so the motor could not be cut off when he landed; it was held that he was killed as a result of "participation in * * * aeronautic activity." In First Nat. Bank of Chattanooga v. Phœnix Mut. Life Ins. Co. (C.C.A.6) 62 F.(2d) 681, the insured was the president, active manager, and principal stockholder of an airplane company. The insured frequently used planes in his business and had had some instruction as an aviator. Over the objection of the pilot to going up under existing weather conditions, a trip was started which ended fatally. It was held that insured was "participating in aeronautic operations" since he, as president and manager of the company, interposed and enforced his judgment on the pilot in the vital matter of suitable flying weather. In Mayer v. New York Life Ins. Co. (C.C.A.6) 74 F. (2d) 118, 119, 99 A.L.R. 155, a passenger was held to be one who was "engaging as a passenger or otherwise in * * * aeronautic operations." In ...
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