Gregory v. Mutual Life Ins. Co. of New York

• Decision Date: 19 August 1935
• Docket Number: No. 10248,10248
• Citation: Gregory v. Mutual Life Ins. Co. of New York, 78 F.2d 522 (8th Cir. 1935)
• Parties: GREGORY et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Eighth Circuit

78 F.2d 522 (1935)

GREGORY et al. v.MUTUAL LIFE INS. CO. OF NEW YORK.^*

No. 10248

Circuit Court of Appeals, Eighth Circuit.

July 5, 1935.

As Corrected August 19, 1935.

W. J. Dungan, of Augusta, Ark. (Ross Mathis, of Cotton Plant, Ark., on the brief), for appellants.

A. F. House, of Little Rock, Ark. (Frederick L. Allen, of New York City, and Rose, Hemingway, Cantrell & Loughborough, of Little Rock, Ark., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

GARDNER, Circuit Judge.

Appellants, as plaintiffs below, brought this action to recover on three life insurance policies written by appellee on the life of William N. Gregory.These policies provided for the payment of double indemnity in the event death resulted directly from bodily injury received independently and exclusively of all other causes, and that such bodily injury was effected solely through external, violent, and accidental means.

The insured was killed in an airplane crash, in the state of Illinois, about thirty miles from the city of St. Louis, Mo., on April 18, 1933.The appellee insurance company paid the face of the policies, but declined to pay double indemnity, and this action resulted.

The insured was a planter, merchant, and banker, residing at Augusta, Ark.He appears to have been a man of some considerable means.His nineteen year old son, William N. Gregory, Jr., was the owner of an airplane and held a transport pilot's license at the time of the accident involved, and had been flying for some three years prior to that time.The plane was registered in the Department of Commerce of the United States, in the name of William N. Gregory, Jr., who was in fact the owner thereof, although the money with which to purchase it had been furnished by his father, just as he had been furnished money by his father for the purchase of automobiles.The insured could not pilot an airplane, had no knowledge of flying, but at the time of the fatal accident he was a guest passenger in the passenger compartment of his son's plane, which was being piloted by his son, bound for the city of St. Louis, where the insured was going on some private business.The plane consisted of two compartments, one for occupancy by passengers, and the other by the pilot, and conversation could not be carried on by the passengers with the pilot while the plane was in operation.The plane was in sole charge of William N. Gregory, Jr., from the time it left Augusta, Ark., the morning of April 18, 1933, to the time of the fatal crash as above noted.

The policies contain provision that the insurance company should not be liable for double indemnity for death resulting from "participation in aeronautics."

There was evidence that the insured had interested himself in procuring a flying field for Augusta, Ark., where he lived.He had taken only a few trips in an airplane before this one.

The action was tried to the court without a jury, and on motion of the defendant, the court declared as a matter of law that "one who rides in an airplane as a passenger participates in aeronautics within the meaning of the terms of the policies," and also declared as a matter of law that "one who rides in an airplane as a guest participates in aeronautics," and that "one who owns airport property, who had participated in the formation of a corporation which was to engage in commercial flying and transportation, who has a minor son who is a qualified pilot, who furnished the money used in purchasing the plane, and who rides with such minor son, participating in aeronautics," and entered judgment for the defendant, dismissing plaintiff's complaint.

We put aside as not material to the issues the declaration of law with reference to the ownership of airport property and the participation in the formation of a corporation which was to engage in commercial flying, and the furnishing of money for use in purchasing the plane.

There is little, if any, conflict in the material evidence, and the decision is dependent upon the construction to be given to the term "participation in aeronautics," as applied to the facts in this case.

Aeronautics is said to be the art of sailing in or navigating the air.It is also defined as "the science or art of aerial navigation,"¹ and the question is whether one who rides in an airplane as a passenger can be said to be participating in aeronautics within the meaning of the terms of the insurance contracts in question.

In the last edition of Encyclopedia Britannica, appears an article headed "Aeronautics."It would, of course, not be feasible to reproduce the article in this opinion, but it is interesting to observe what the author of this article thought was included in the term "aeronautics."We find such subheadings...