Elliott v. Massachusetts Mutual Life Insurance Company

• Decision Date: 10 January 1968
• Docket Number: No. 24658.,24658.
• Citation: 388 F.2d 362
• Parties: John S. ELLIOTT and Fredda Caldwell Elliott, Appellants, v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

388 F.2d 362 (1968)

John S. ELLIOTT and Fredda Caldwell Elliott, Appellants, v. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Appellee.

No. 24658.

United States Court of Appeals Fifth Circuit.

January 10, 1968.

William G. West, Jr., Birmingham, Ala., for appellants.

Ralph B. Tate, Birmingham, Ala., for appellee.

Before RIVES and GODBOLD, Circuit Judges, and HUGHES, District Judge.

RIVES, Circuit Judge:

Decision of this appeal turns on the application to stipulated facts of an "Aeronautical Risk Exclusion" in a policy of life insurance and a similar "Exception" in the policy's provision for indemnity benefit for death by accidental means. The insurance company denies liability for the face amount of the policy because of a provision which reads in pertinent part as follows:

"Limitation of Liability Provision.

"Aeronautical Risk Exclusion.

"The following risk is not assumed under the policy:

"Death resulting from travel or flight in, or descent from or with, any kind of aircraft aboard which the insured is a pilot or member of the crew * * * or has any duty incident to the operation of said aircraft."

As to the provision for death by accidental means, there are nine numbered "Exceptions," each of which may have some relevance, but the most pertinent part of which reads as follows:

"The benefits under this provision shall not be payable if the death of the insured shall have resulted directly or indirectly from: * * * (4) travel or flight in, or descent from or with, any kind of aircraft aboard which the insured is a pilot or member of the crew or is a student or instructor of aeronautics or is giving or receiving any kind of training or instruction or has any duty incident to the operation of said aircraft * * *."

Most of the material facts were without dispute. The policy of insurance on the life of Captain Donald G. Elliott was in force at the time of his death. His parents, the plaintiffs, appellants, were named as beneficiaries. Due notice of death was admitted. The parties agreed that the following "Summary of Facts" submitted by Colonel Robert A. Prince "represents the facts of the flight and death of Captain Elliott as recited therein and may be admitted in evidence without further authentication."

"Summary of Facts.

"This is a summary of the facts concerning the death of Captain Donald G. Elliott, FG 3103649 (ANGUS), 159th Fighter Interceptor Squadron, Florida Air National Guard, Imeson Airport, Jacksonville, Florida, in the Atlantic Ocean, off the cost of Florida between St. Augustine and Daytona Beach, on 11 October 1965.

"At about 1330 EST, 11 October 1965, Captain Elliott took off from Imeson Airport alone in F-102A aircraft, SN 56-1358, for an authorized routine training flight. Weather was good. He was instructed to climb to 25,000 feet, proceed southeast for 50 nautical miles, turn north until he was 50 nautical miles north of the field, at which point he was to call Jacksonville Approach Control on the aircraft radio and practice VFR approaches at Imeson Airport.

"At about 1356 the following radio transmissions were received in, and sent by, Imeson control tower:

"`Mayday, Mayday, Mayday — Echo Hotel-76.' (EH-76 was the identification call sign of Captain Elliott's aircraft.)

"Tower: `EH-76, Jax tower, go ahead.

"EH-76: `I'm in a spin going through fifteen thousand uncontrollable.

"Tower: `Understand in a spin passing fifteen thousand uncontrollable. What is your present position, please?

"EH-76: `Presently, fifty miles on 150 degree radial.

"Tower: `Fifty miles, 150 degree radial.

"EH-76: `Roger I'm punching out.'

"This conversation took about 43 seconds and ended at 1356:33 EST.

"Jacksonville Center immediately notified the appropriate rescue authority of the fact that Captain Elliott was bailing out of his aircraft and the approximate location. The Naval Air Station, Jacksonville, launched a standby helicopter and requested a helicopter launch from the naval station at Mayport and the naval station at Cecil Field.

"At 1407 EST the rescue helicopter from Mayport was airborne. The other two helicopters took off shortly thereafter but were not involved in the rescue attempt. The helicopter from Mayport, manned by four Naval Rescue personnel, reached the downed pilot at about 1435 EST. The F-102A aircraft was not seen.

"The helicopter crew observed that the pilot's head was one foot or more underneath the surface of the water. Navy rescue man Norman W. Chatman, HM 1 (SS) AC, USN, Mayport Naval Station, was instructed by the helicopter pilot F. E. Lewis, ATC/AP, USN, Mayport Naval Station, to jump in the ocean to assist the pilot. Chatman immediately jumped from the helicopter, swam to the pilot and attempted to lift him into the pilot's life raft which was floating near the pilot. The weight of the pilot's parachute and gear prevented this action. The helicopter was brought overhead and a hoist hook was dropped to Chatman. Using the hoist hook the pilot was lifted out of the water and up to the helicopter. Lines holding the pilot's gear were cut and he was brought into the helicopter.

"Artificial respiration was attempted, but after about 20 minutes it was stopped because it was apparent that the pilot was dead. The helicopter crew delivered the pilot's body to the Naval Air Station, Jacksonville, Hospital.

"During the removal of Captain Elliott from the sea, Chatman was assisted by two other Naval Rescue men in the helicopter, Joyce E. Cummings, ANS 3, USN, and James E. Davis, ADR-3, USN, Mayport Naval Station.

"An autopsy was performed on Captain Elliott and it was determined that the sole cause of death was drowning.

"The wreckage of the aircraft was recovered 17 days later about 50 miles southeast of Imeson Field in about 50 feet of water. Examination of the wreckage by expert personnel did not reveal any evidence of material failure.

"The pilot's ejection seat, parachute, and life raft were recovered shortly after the pilot was picked up. A thorough analysis was made of the survival gear and the other evidence, by a Board of well-qualified investigators, who determined that the following occurred:

"Captain Elliott ejected from the aircraft at about 3,000 feet. His parachute opened. He inflated his `Mae West' life preserver. His one-man life raft inflated properly and dropped beneath him on its lanyard as he descended toward the water. Captain Elliott was not injured during the ejection from the aircraft and he was not injured when he entered the water. At sometime, either during the descent or after entry into the water, he became entangled with the shroud lines of his parachute. He used his pilot's knife to cut several of the shroud lines. He removed his right boot and his gloves.

"In the water, some of the shroud lines were entangled on his right leg and ankle. In reaching down to clear his ankle he caused his life preserver to move from its normal position on his chest and under his chin to a position under his armpits. In this position it was extremely difficult for him to raise his head above the surface. When the Naval Rescue man jumped in beside him. Captain Elliott was drowned, with his head beneath the water, his feet down, and his arms outstretched. His life preserver was working properly, except for being out of its proper position on his body.

"There were no other witnesses at the scene."

Both the plaintiffs and the defendant moved for summary judgment on the foregoing admitted facts. The plaintiffs also established by their affidavits that Captain Elliott was a strong and excellent swimmer, and since childhood had been able to swim "great lengths"; that he served in the United States Air Force for six and one-half years, during which period he took various survival courses; including a sea survival course of approximately two weeks' duration. The plaintiffs also offered the affidavit of technical Sergeant Danny E. Morris which established his familiarity with water survival and with life saving equipment. Sergeant Morris' affidavit continued:

"Based upon his background and familiarity with survival equipment, the affiant avers that the slipping of the life jacket as described in this said summary is not an ordinary, usual or anticipated occurrence, nor is it a result which is naturally or normally to be expected to follow from the use of such a life jacket. The affiant further states that the normal and expected operation of this life jacket is to hold the head of a pilot out of the water even if he is injured in ejecting or descending. Based upon his background and experience, the affiant states that the slipping of the life jacket of Captain Elliott as set out in the aforesaid summary could not result from the usual or ordinary use of this life jacket, but, in his judgment and opinion, could occur only as the results of an intervening accidental cause."

The defendant assigned some thirteen grounds of objection to Sergeant Morris' affidavit, and the district court, without indicating the ground on which it relied, sustained the defendant's objection. Later the court denied the plaintiffs' motion for summary judgment and granted the defendant's motion, except for ordering the return of $849.20 representing the premiums paid on the insurance policy.¹

If Sergeant Morris' affidavit were admitted for any purpose other than its possible aid to the court in its determination of whether there was a genuine issue as to any material fact and whether the moving party was entitled to a judgment as a matter of law,² its admission would necessitate a denial of the defendant's motion for summary judgment, for the weight to be accorded true opinion evidence is always for the jury or other trier of the facts.³ In other words, if opinion evidence is relevant, then the case is simply not one to be determined on motion for summary judgment. Perhaps for that reason Rule 56(e) does not allow the admission of opinion evidence, but provides that "supporting and...