Delaney v. United Services Life Insurance Company, Civ. A. 2782.

Citation201 F. Supp. 25
Decision Date27 December 1961
Docket NumberCiv. A. 2782.
PartiesJoan Flores DELANEY v. UNITED SERVICES LIFE INSURANCE COMPANY.
CourtUnited States District Courts. 5th Circuit. Western District of Texas

Horace P. Shelton, Jr., of Hoyo, Shelton & Haight, San Antonio, Tex., for plaintiff.

Bond Davis, of Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, Tex., for defendant.

SPEARS, District Judge.

This suit involves the construction of a "Limitation Due to Aviation Hazard" provision of a $20,000.00 life insurance policy issued by the defendant, a District of Columbia corporation, to Robert H. Delaney, as the insured, on October 1, 1957. The plaintiff, widow of the insured, a resident of Bexar County, Texas, was named as the primary beneficiary. The case was submitted to the Court, without a jury, upon the pleadings, admissions and stipulations of the parties.

In his application dated September 28, 1957, the insured at that time a Lieutenant in the United States Army, stated, among other things, that he had applied for army aviation; that he had been accepted in the Judge Advocate's branch; that he did not then desire aviation; and that he would decline aviation if he was accepted. By an amendment to the application, dated the same day, the following provision was added:

"Limitation Due to Aviation Hazard
"If this policy shall become a claim by death of the insured due to any service, training, travel, flight, ascent or descent in, on, or from any species of aircraft at anytime, except death resulting from travel as a passenger on an aircraft owned and operated by the United States Government or as a passenger on a scheduled passenger air service regularly offered between specified airports, the liability of the company under this policy shall be limited to the premiums paid hereunder or to the then net reserve at time of death, if greater; any provision in this policy to the contrary notwithstanding."

The insured certified that he had done no flying except as a passenger under the conditions outlined in said amendment.

When the policy was issued, it contained a rider incorporating the provision above quoted, and the words "Limitation Due to Aviation Hazard included," were typed on its front and back. It was in full force and effect when the insured died on May 8, 1959 of injuries received as the pilot and only occupant of an aircraft owned and operated by the United States government, which crashed near Spring Branch, Texas, while on a night training flight. At the time of his death, the insured was receiving incentive pay and was on duty as a regular officer.

Prior to the accident which claimed his life, the insured, on May 1, 1958, advised the defendant on a "Change of Mailing Address" card, with respect to his new mailing address, and, in addition thereto, stated:

"Due to change in my orders I am now going to Flight School at San Marcos, Texas, so please advise me as to your policy."

By letter to the insured dated May 13, 1958, an agent of the insurer wrote that an amendment form "for the purpose of adding extra aviation coverage" to the policy was being enclosed, and advised that if the insured wished to "add aviation coverage," he should complete the form as therein instructed, and return it to the company, together with his policy. The cost of this coverage was stated to be $ .50 per month per $1000 of insurance, or $5.00 per month at the allotment rate. The insured was further advised to correct his allotment, but that since it would probably take two months for the corrected allotment to go through, he should send a check for $10.00 to pay the extra aviation premium for the months of June and July. The amendment form requested the insurer to "cancel Limitation Due to Aviation Hazard and increase premium to $23.30 effective 1 June 1958."

Apparently, the insured completed the form and returned it to the company, together with the $10.00 check, because on May 28, 1958, the same agent for the insurer again wrote to the insured expressing regret that an error had been made in computing the extra premium. He enclosed the old form to be destroyed by the insured as well as new forms indicating that the increase in the monthly allotment would be $28.30, instead of $23.30, making the additional premium $10.00 per month, instead of the $5.00 amount previously quoted. Whereupon, by a postal card dated June 28, 1958, and mailed the same day at San Marcos, Texas, the insured told the agent to cancel the aviation clause in his policy, saying, "I think an additional $10.00 per month for aviation coverage is outrageous. I have other policies that did not even increase when I entered Flight School. If I could get my premiums back I would cancel the entire policy."

Several weeks later, on July 21, 1958, the agent responded to the insured as follows:

"Since you indicated in your application for policy number 52150 that you had applied for army aviation, the policy was issued with a Limitation Due to Aviation Hazard included. The policies which you mention in your post card as not having undergone an increase in premium due to your flight activity were undoubtedly issued before you applied for aviation training, and consequently without the Limitation Due to Aviation Hazard. Had these companies known at the time of issue of your policies that you would become a student pilot, these policies too would have been issued with a Limitation Due to Aviation Hazard, and there would have been an increase in premiums for extra aviation coverage upon your
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7 cases
  • United Services Life Insurance Company v. Delaney, A-10671
    • United States
    • Texas Supreme Court
    • December 1, 1965
    ...the judge of said court handed down his opinion supporting the proposition that Lieutenant Delaney's death was covered by the policy. 201 F.Supp. 25. Judgment was rendered awarding Mrs. Delaney a In the course of his opinion the District Judge said: 'The plaintiff claims that she is entitle......
  • United Services Life Insurance Company v. Delaney
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 18, 1964
    ...on a policy of insurance on the life of Robert H. Delaney payable to the appellee, Joan Flores Delaney. Delaney v. United Services Life Insurance Co., D.C.W.D.Tex.1961, 201 F.Supp. 25; United Services Life Insurance Co. v. Delaney, 5th Cir. 1962, 308 F.2d 484. The insured was a lieutenant i......
  • Aetna Life Insurance Company v. Barnes
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 24, 1966
    ...modified on rehearing, 1964, 328 F.2d 483 (en banc), cert. denied, 377 U.S. 935, 84 S.Ct. 1335, 12 L.Ed.2d 298, and reversing W.D.Tex., 1961, 201 F.Supp. 25, after Texas courts refused to assume jurisdiction upon abstention, Tex., 1965, 396 S.W.2d 855, affirming Tex.Civ.App., 386 S.W.2d 648......
  • Paul Revere Life Ins. Co. v. First National Bank in Dallas
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 31, 1966
    ...the meaning of the word "passenger" to be ambiguous.1 See Continental Casualty Co. v. Warren, supra; Delaney v. United Services Life Insurance Company (W.D.Texas 1961) 201 F. Supp. 25. The decision by Judge Davidson is not I take my stand with the Texas judges on what constitutes Texas law.......
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