Irwin v. Prudential Ins. Co. of America, 771.

• Decision Date: 12 December 1933
• Docket Number: No. 771.,771.
• Citation: 5 F. Supp. 382
• Parties: IRWIN v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: U.S. District Court — Western District of Michigan

5 F. Supp. 382

IRWIN v. PRUDENTIAL INS. CO. OF AMERICA.

No. 771.

District Court, E. D. Michigan, N. D.

December 12, 1933.

Carl H. Smith, of Bay City, Mich., for plaintiff.

Knappen, Uhl, Bryant & Snow, of Grand Rapids, Mich., for defendants.

TUTTLE, District Judge.

This is an action at law brought by the plaintiff, N. W. Irwin, as receiver of First National Bank, a national banking corporation of Bay City, Mich., to recover from the defendant, Prudential Insurance Company of America, on a certain insurance policy issued by the defendant, in 1920, on the life of Harold C. Young, in which policy the said bank is the beneficiary. The defendant admits that it is liable under said policy in the amount of $5,000, which sum it has already paid to the plaintiff, but refuses to pay an additional $5,000, to which the plaintiff claims to be entitled under a double indemnity accidental death benefit clause. This clause, however, contained the following proviso: "Provided, however, that no accidental death benefit shall be payable if the death of the insured resulted from suicide, whether sane or insane; from having been engaged in military or naval service or in aviation or submarine operations."

The sole question now involved is whether the death of the insured resulted "from having been engaged * * * in aviation * * * operations."

A jury was duly waived and the facts submitted to the court on an agreed statement of facts, the material recitals of which may be stated sufficiently for the purposes of this opinion as follows:

"The said Harold C. Young died as a result of injuries sustained on the 23rd day of October, A. D. 1931, caused by the crash of a device known as a `Glider,' in which he was riding as pilot and sole occupant, at the Clements Airport in the City of Bay City, Bay County, Michigan, on the date in question, at approximately 1:20 o'clock p. m.; * * * his regular occupation was that of physical director of the Bay City Y. M. C. A. in the City of Bay City, Michigan, and * * * instruction in gliding or teaching other persons to pilot gliders was no part of his occupation as physical director; * * * the said Harold C. Young at the time in question was not instructing any person in the operation of a glider, but * * * he did do so at times, and had organized glider clubs. * * * There is no evidence to show that the accident which caused the death of the said Harold C. Young resulted from faulty construction of the glider in which he was riding. * * * At the time in question the said Harold C. Young was riding in the said glider purely as a recreation and not as a part of his business; * * * Instruction in gliding or teaching other persons to pilot gliders was not an occupation followed by Mr. Young for monetary remuneration; * * * the said Young was interested in the operation of gliders as a sport, hobby and recreation; * * * he was enthusiastic about the sport. * * * The said Young, from October 1, 1930, to the time of his death had flown a glider approximately one hundred times, * * * for the year preceding September 24, 1930, he had flown a glider approximately one hundred and three times, but * * * at no time during said periods had he flown a glider as a business or for profit."

Did the death of the deceased result from "having been engaged * * * in aviation * * * operations"? I have carefully examined all of the authorities cited by counsel in their able briefs, and other decisions, but have not found any decision precisely in point or involving facts substantially similar to those presented here. A concise but excellent review and discussion of the authorities upon the general subject will be found in the recent opinion of Judge Moorman, speaking for the Circuit Court of Appeals for this circuit, in the case of First National Bank of Chattanooga v. Phoenix Mutual Life Insurance Co., 62 F.(2d) 681. The only decision which I have discovered in which the insured was actually operating the aircraft which caused his death is that of the Wisconsin Supreme Court...