Faron v. Penn Mutual Life Ins. Co., 9711.
| Decision Date | 05 August 1949 |
| Docket Number | No. 9711.,9711. |
| Citation | 176 F.2d 290 |
| Parties | FARON v. PENN MUTUAL LIFE INS. CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Sherman T. Rock, Pittsburgh, Pa. (Henry P. Hoffstot, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for appellant.
Sebastian C. Pugliese, Pittsburgh, Pa., for appellee.
Before BIGGS, Chief Judge, and McLAUGHLIN and KALODNER, Circuit Judges.
Jurisdiction in the case at bar is based on diversity of citizenship. The plaintiff, Winfield Scott Faron's widow, is a citizen of New York. The Penn Mutual Life Insurance Company ("Mutual") is a corporation of the State of Pennsylvania. Mr. Faron was insured by Mutual by a policy issued in 1937. He was killed while riding as a fare-paying passenger on a regularly scheduled flight in a commercial passenger aircraft of Eastern Airlines when the airplane crashed near Chesire, Connecticut, on January 18, 1946. The policy is in the face amount of $5,000 and has a clause providing for the payment of double indemnity.
This clause contained the following: "This Double Indemnity Benefit shall not be payable if the death of the Insured resulted directly or indirectly from illness or disease of any kind or from physical or mental infirmity; from the taking of poison or inhaling of gas, whether done voluntarily or otherwise; from self-destruction at any time, whether sane or insane; from the commission of a felony by the Insured; from aeronautic or submarine casualty; or if the injuries were sustained while the Insured was performing Military or Naval Service in time of war or riot, or police duty as a member of any Military, Naval or Police organization." (Emphasis added.)
After motions for judgment on the pleadings by both parties, a stipulation was filed providing that the record should consist of the complaint and answer and that no testimony should be submitted. The facts are not in dispute.
The court below, relying largely on the opinion of Mr. Chief Justice Groner in Clapper v. Aetna Life Insurance Co., 81 U. S.App.D.C. 246, 157 F.2d 76, which construed the term "aeronautic" as "a scientific and limiting word", held that Mrs. Faron was entitled to double indemnity. See 77 F. Supp. 228, 231. Mutual has appealed.
The question, whether the insurer is liable under the double indemnity provision of the policy, must be determined by the law of New York for the reasons which follow. There is no proof as to where the...
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