Great American Indem. Co. of New York v. Saltzman
| Decision Date | 18 June 1954 |
| Docket Number | No. 14992.,14992. |
| Citation | 213 F.2d 743 |
| Parties | GREAT AMERICAN INDEM. CO. OF NEW YORK v. SALTZMAN. |
| Court | U.S. Court of Appeals — Eighth Circuit |
E. L. McHaney, Jr., Little Rock, Ark., (Grover T. Owens, John M. Lofton, Jr., James M. McHaney and Owens, Ehrman & McHaney, Little Rock, Ark., on the brief), for appellant.
Thomas B. Tinnon, Mountain Home, Ark., for appellee.
Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.
Appellee brought this action against appellant to recover on a policy of liability insurance. The parties will be referred to as they appeared in the trial court. Defendant issued to plaintiff a personal liability policy of insurance on the 13th day of June, 1950. The policy was delivered in the State of Arkansas and hence is an Arkansas contract. It was in full force and effect at all times pertinent to the issues here involved. It contained provision that the insurance company would, subject to exclusions, conditions and other terms of the policy, "* * * pay on behalf of the Insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law * * * for damages because of injury to or destruction of property, including the loss of use thereof." The policy contained exclusions which so far as here pertinent read as follows:
At the time of the issuance of the policy the insured was a practicing physician located at Mountain Home, Arkansas. He was also the owner of a private airplane and a duly licensed private pilot.
On November 28, 1951, plaintiff landed his aircraft at the Flippin airport located at Flippin, Arkansas. Shortly thereafter a Ryan Navion airplane owned by the Veterans of Foreign Wars was landed at the Flippin airport by its pilot. While this plane was standing at the airport, unoccupied and unguarded, the plaintiff, who had in mind purchasing a new plane, and being an airplane enthusiast, entered the cockpit of the unoccupied Ryan Navion plane for the purpose of inspecting its mechanism and its various gadgets. At the time he entered the plane the engines were not operating and he did not enter with the intention of activating any of the machinery but simply for the purpose of inspecting it and familiarizing himself with the various instruments and controls. In the course of his inspection plaintiff engaged the aircraft starter knowing at the time it was the starter control and with the intention of engaging said control, but without the intention of starting the engines. Plaintiff was under the impression that the starter control could be engaged without actually starting the engines. This thought was based upon the mistaken belief that the mechanism connected with the starter was similar to that in his own craft. To his surprise and amazement and contrary to his expectations the engines started and plaintiff because of his unfamiliarity with the various gadgets was unable to set the brakes or turn off the engines or otherwise stop the movement of the aircraft which rapidly accelerated and crashed into a hangar after traveling a distance of some ninety feet resulting in substantial damage to the aircraft. Plaintiff's entrance to the aircraft was without the authority, knowledge or consent of the owner or operator of this aircraft, or so far as appears from the record the knowledge of anyone but himself.
In an action brought against plaintiff to recover damages to this aircraft resulting from his acts judgment was recovered against him in the amount of $3,569.58, including damages and costs. When that action was initiated the insured gave notice to the defendant herein of the commencement of the action and tendered to it the defense of the action which the defendant declined and plaintiff thereafter gave defendant notice of the entry of judgment and demanded that it pay the same. This, defendant also declined and thereafter plaintiff paid the judgment and brought this action against the defendant to recover the amount of said judgment and in addition his attorney's fee, costs and penalties recoverable under the Arkansas statutes.
The defendant answered, pleading as its defense that it was not liable because of the exclusions contained in the policy and that the damage for which plaintiff became liable and for which judgment was rendered against him was to an aircraft and that such liability was not one assumed by the defendant because of the exclusions contained in the policy.
The action was tried to the court without a jury. The facts were all stipulated and will be further developed in the course of this opinion. The court entered findings of fact in conformity with the stipulation and based thereon it concluded as a matter of law that the defendant was liable and entered judgment accordingly. D.C., 115 F.Supp. 944. From the judgment so entered defendant prosecutes this appeal, contending as it did in the trial court that:
I. The plaintiff's liability resulted from use of aircraft and is not an insured liability, and
II. The property damaged was property used by, rented to or in the care, custody or control of the insured.
As has been observed the facts were all stipulated and as stated by the defendant in its brief the ultimate issue is whether or not the policy covered plaintiff's liability for damage to an airplane.
The general insuring clause of the policy obligates the defendant "To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law * * * for damages because of injury to or destruction of property * * *." Manifestly, if this provision stood alone and unqualified it would cover the loss here in question and hence the question to be determined is whether the exclusionary clauses relied upon exempt defendant from liability. The pertinent exclusions may be reduced to two:
1. Whether the aircraft was being used by plaintiff, and
2. Whether the aircraft was in plaintiff's care, custody or control.
In considering the question of liability under any insurance contract the contract must be considered as a whole. The decisive question in this case is not what abstract definition may be given the word "used" but rather what the term meant as used in the exclusionary provisions of the policy. We are clear that at the time of the occurrence which resulted in the damage to the Ryan Navion plane plaintiff was not using the aircraft nor was he attempting to use it. That was not his purpose in entering the cockpit of this craft but he was simply inspecting and somewhat carelessly handling certain gadgets connected with the mechanism. Had the owner or pilot in control of the craft been present it is not conceivable that the plaintiff would have requested of him the privilege of using the plane, but manifestly, his request would have been for the privilege of inspecting it. Defendant relies strongly on the case of Lee v. Aetna Cas. & Sur. Co., 2 Cir., 178 F.2d 750, but the case is readily distinguishable in its facts. There the representative of the owner of the building, or of the business carried on in the building, took a customer to the elevator so that it might be used in the normal, ordinary or customary manner for which it was intended, and invited the customer to enter for the purpose of use, whereas in the instant case there was no purpose on the part of the plaintiff to make the normal or customary use of the plane as an instrument of transportation. It is conceded by defendant, as it must be, that the term "use" is variously defined and if so, it was incumbent upon defendant as the insurer to so word the exclusionary clause of its contract that any conceivable contact with aircraft, such as a physical inspection of it,...
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