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

• Decision Date: 23 May 1938
• Docket Number: No. 19226.,19226.
• Citation: 118 S.W.2d 505
• Parties: HANSEN v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

118 S.W.2d 505

HANSEN v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 19226.

Kansas City Court of Appeals. Missouri.

May 23, 1938.

Rehearing Denied June 13, 1938.

Appeal from Circuit Court, Jackson County; Emory H. Wright, Judge.

Action by Wilma M. Goodmon Hansen against the Mutual Life Insurance Company of New York on a life and accident insurance policy. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

McVey, Randolph, Smithson & Garrity, of Kansas City, for appellant.

Michaels, Blackmar, Newkirk, Eager & Swanson, of Kansas City, for respondent.

BLAND, Judge.

This is an action by the beneficiary on a combined life and accident insurance policy based upon the double indemnity features therein, the policy providing for $1000 ordinary or $2000 accidental death benefits as defined and limited in the policy. At the close of plaintiff's opening statement to the jury, which included a statement of the provisions of the policy in question, the court sustained defendant's motion for judgment in its favor. Plaintiff has appealed.

The facts show that insured, Hazel N. Goodmon, made application to the defendant, on the 12th day of December, 1932, for the policy in question and that the policy was issued to her on the 30th day of said month. The application stated that she was engaged in the business of trained nurse, employed as an assistant to a physician.

Section I of the policy provides: "The double indemnity will be payable upon due proof that the insured died before the end of the endowment period as a direct result of bodily injury affected solely through external, violent and accidental means, independent and exclusive of all other causes, and of which, in the case of drowning, there is evidence by a visible contusion or wound on the exterior of the body and that such death occurred (a) within 90 days after the date of such injury and (b) before the anniversary of the date of the policy on which the age of insured at nearest birthday is sixty-five years; provided that the Double Indemnity shall not be payable if death resulted directly or indirectly from disease or bodily or mental infirmity; from self-destruction, whether sane or insane; from the taking of any kind of poison or inhaling of any kind of gas, whether voluntary or involuntary; from military or naval service in time of war, or from any act incident to war; from engaging in riot or insurrection, or from committing an assault or felony, or from operating or riding in any kind of aircraft, whether as a passenger or otherwise, except as a fare-paying passenger in a licensed passenger aircraft provided by an incorporated passenger carrier and operated by a licensed pilot on a regular passenger route between definitely established airports."

Section 13 of the policy provides: "This policy is free from restrictions as to occupation except the restriction as to military or naval service applying to Double Indemnity as provided in Section I."

Sometime after the policy was issued insured changed her occupation to that of "stewardess on airplanes", it being her duty as such "to ride on the planes and minister to the wants, needs and comfort of the passengers,—the commercial passengers on the planes." On December 23rd, 1933, insured was employed by the United Air Lines as an airplane stewardess and, in her capacity as such, she made a trip from Kansas City to Chicago on a regular passenger plane carrying commercial passengers, on a flying schedule. She was to return to Kansas City on the same plane in the late afternoon of the 23rd, but the flight was cancelled for some reason and she, the pilot and co-pilot, remained in Chicago over night. On the following day it was determined that the plane, the pilot, co-pilot and the stewardess would be needed at Kansas City to go on a regular flight from there before they would be needed to make the flight from Chicago to Kansas City and, for that reason, the employer ordered the pilot and co-pilot to take the plane back to Kansas City and ordered insured to take passage on the plane and return to that place. This flight from Chicago to Kansas City was not for the purpose of carrying any passengers but was merely made in order to get the plane and the employees back to Kansas City where they were needed. This was what is known as a "ferry trip". The plane and crew started back to Kansas City. Insured occupied the passenger compartment having no duties to perform. On the way the plane crashed to the ground, resulting in insured's death.

The opening statement contains the following: "This was a licensed aircraft that she rode in, and piloted by a duly licensed pilot, licensed by the Department of Commerce of the United States; that it was owned by a corporation engaged in the business of running passenger-planes for carrying passengers, and that it was between definitely established airports, and over a regular passenger route."

Defendant settled with the beneficiary under the single indemnity provision of the policy for an ordinary death, paying her the sum of $1,014.22, under such conditions as to permit a suit by her to test the question as to whether she was entitled to recover under the accident provisions of the policy.

It is insisted by plaintiff that the court erred in sustaining the motion for judgment; that by reading the provisions of Sections 1 and 13 together the policy plainly provided for accident insurance while the insured was performing the duties of her occupation as airplane stewardess; that the provisions of Section I, providing that there should be no recovery for a person if death resulted from operating or riding in any kind of aircraft, except as a fare-paying passenger, etc., does not have to do with death resulting while insured was discharging the duties of her occupation, but death under the circumstances mentioned in the policy to one not engaging in his occupation. To use plaintiff's words:—the defendant said to insured, in the policy: "If you are killed while riding in an airplane, we will not pay your beneficiary Double Indemnity, unless you are riding in an airplane as a part of the duties of your occupation in which you are then engaged. If you go down into a coal mine and die from inhaling carbon monoxide or other poisonous gases, whether voluntary or involuntary, we will not pay your beneficiary for Double Indemnity unless you are then engaged in the occupation of a coal miner or other occupation making it your duty to go down in the coal mine. However, if you are killed in `military or naval service' we will not pay your beneficiary Double Indemnity even though you should at the time be engaged in that occupation."

It is defendant's contention that Section I of the policy is free from ambiguity, and clearly excludes from coverage death resulting directly or indirectly from riding in any kind of aircraft, whether as a passenger or otherwise, except as a...