Kilburn v. Union Marine & General Ins. Co., 11

• Decision Date: 07 December 1949
• Docket Number: No. 11,11
• Parties: KILBURN v. UNION MARINE & GENERAL INS. CO., Limited.
• Court: Michigan Supreme Court

Page 90

40 N.W.2d 90

326 Mich. 115

KILBURN v. UNION MARINE & GENERAL INS. CO., Limited.

No. 11.

Supreme Court of Michigan.

Dec. 7, 1949.

James B. Stanley, Kalamazoo, for plaintiff-appellee.

Howard & Howard, Kalamazoo, for defendant-appellant.

Before the Entire Bench.

NORTH, Justice.

Plaintiff Harold Kilburn was the owner of an airplane on which he procured insurance from the defendant company on the 4th day of June, 1947. On the same day the policy was dated, but after it became effective, plaintiff while on a flight in his plane had an accident. In a suit on the policy to recover his damages thus sustained plaintiff had judgment for $675. Defendant has appealed, claiming that at the time of the accident plaintiff was flying his airplane in violation of the terms of the insurance contract and therefore was not entitled to recover. The case was tried by jury, and at the conclusion of the proofs defendant moved for a directed verdict on the ground that since at the time of the accident plaintiff was operating the plane in violation of regulations the risk was not covered. This motion was taken under advisement, and later defendant's motion for judgment notwithstanding verdict was heard and denied.

Very shortly after plaintiff secured his insurance he and one Bernard Skinner started on a flight in plaintiff's plane. The plane was a two-seater with controls so arranged that they could be operated from either seat. After being in the air about an hour and while plaintiff was operating the controls, the plane hit some high tension wires and in the resulting accident the plane was damaged. Plaintiff had only a student pilot's license. His passenger, Bernard Skinner, had a pilot's license, but he was not a certified instructor, and this latter fact was known to plaintiff.

Plaintiff's insurance contract permitted a certified instructor to accompany plaintiff in his plane, but the policy provided that it did not cover damage to his airplane if at the time it was being operated by any person in violation of the terms of the Civil Aeronautics Administration Pilot's Certificate. It appears without controversy that at the time of the accident plaintiff was piloting his plane and Skinner was a passenger in the plane. Plaintiff so testified. This was in direct violation of the Civil Aeronautics Administration's regulations, made a part of plaintiff's student pilot license, which provided: 'A student shall not pilot an aircraft carrying a passenger * * *.' Under the heading of 'Exclusions' the following appears in the insurance contract: 'This policy does not cover any loss: * * * (b) while, with the knowledge and consent of the insured the aircraft * * * (2) is operated in violation of its Airworthiness Certificate or is being operated by any person in violation of the terms of his Civil Aeronautics Administration Pilot's Certificate (other than taxiing) * * *.'

Notwithstanding the above policy limitations or exclusions, the trial judge, because of certain testimony about to be noted, submitted to the jury as issues of fact whether the defendant insurance company had not waived the limitations on its liability, and whether plaintiff's violation of the inhibition against carryng a passenger had any causal connection with the accident.

The claimed waiver arises out of circumstances attending plaintiff's purchase of the insurance through one of defendant's solicitors. On the day of the accident but prior thereto, the insurance transaction was...