Krause v. Pacific Mut. Life Ins. Co. of California
| Decision Date | 24 July 1942 |
| Docket Number | 31327. |
| Citation | 5 N.W.2d 229,141 Neb. 844 |
| Parties | KRAUSE v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Parties to insurance contracts have the right and power to contract for what accidents and risks insurer shall and shall not be liable, and courts may not make new or different contracts for them.
2. An insurance policy is a contract and, if couched in unambiguous and clear language, should be construed as other contracts.
3. Where there is no uncertainty as to the meaning of an insurance contract, and the same is legal and not against public policy, it will be enforced as made.
4. Evidence in the record examined, and held to establish that the deceased at the time of the accident which caused his death, was not actually riding as a "fare paying passenger."
5. Section 44-322, Comp.St.1929, held inapplicable to the terms of the policy in suit.
Beghtol, Foe & Rankin, Phil Sidles, and W. E Nolte, all of Lincoln, for appellant.
Peterson & Devoe and Chauncey E. Barney, all of Lincoln, for appellee.
Heard before SIMMONS, C. J., and ROSE, EBERLY, CARTER, MESSMORE, and YEAGER, JJ.
This is an action by Nellie M. Krause to recover $10,000 upon an accident insurance policy issued by the defendant company upon the life of Victor Walton Krause, who died in the crash of a T. W. A. Transport plane at Buena Vista Peak in California on March 1, 1938.
The petition in proper form and appropriate language, alleges the issuance by the defendant of its "Accidental and Total Loss Benefits policy *** assuring *** Victor Walton Krause against loss of his life from bodily injuries effected solely through external, violent and accidental means." Further, that while such policy was in full force and effect, "on the 1st day of March, 1938, the said Victor Walton Krause was actually riding as a fare paying passenger in a licensed commercial aircraft provided by an incorporated common carrier for passenger service and while said aircraft was operated by a licensed transport pilot and was flying in a regular civil airway between definitely established airports," the airplane crashed, and in such accident the insured "was killed from bodily injuries thereby effected and solely through external, violent and accidental means resulting directly and independently of all other causes." Full compliance with all applicable terms of the policy, including the furnishing of due proof of loss and the refusal of defendant to pay as required by the terms of the contract of insurance, is set out in due form.
The defendant in an amended answer practically admits the allegations of plaintiff's petition, save in one respect, and, as the sole defense, alleges, in substance, that at the time of the occurrence of the accident Victor Walton Krause was not riding in the aircraft as a fare paying passenger, but as the donee of a "trip pass" without payment by him of any tariff or fare for said transportation or for said privilege.
For her reply plaintiff, in substance, alleges that the trip pass did not entitle Victor Walton Krause to ride upon the aircraft, but that prior to granting permission for embarkation said Krause was required to pay a consideration to the company, to wit to purchase a flight coupon for the sum of $5; that prior to embarking Krause delivered such trip pass and flight coupon to the persons in charge of the aircraft and the same were accepted as payment of fare of such Krause. Plaintiff further alleged that Victor Walton Krause was entitled to receive, and did receive, the same accommodations and conveniences and rode in the airplane in the same manner as all of the other passengers then being transported.
A trial of these issues resulted in a finding generally in favor of the defendant, and a judgment of dismissal of plaintiff's action. From denial of her motion for a new trial, plaintiff appeals.
The plaintiff's reply sets forth the ultimate facts upon which, eliminating the conclusions of the pleader, the parties are in practical agreement. The evidence in the record is not conflicting. The general terms of this insurance contract are embodied in the instrument in suit in the usual form and substance. The provision of the policy out of which the instant dispute arises is the following:
It will be noted that air travel, as such, is, by the terms of the policy, made a strictly excluded risk, save and except when it is carried out in compliance with the words framing the exception to the contractual inhibition on that subject set forth in the policy.
The controlling question in this case is, whether, under circumstances surrounding this fatal accident, Victor Walton Krause was then within the limitations created by the language of the exception above set forth.
"Of course, as is true of parties to insurance contracts generally, the parties to accident insurance contracts have the right and power to contract for what accidents and risks the company shall and shall not be liable, and the courts may not make new or different contracts for them." 29 Am.Jur. 706, sec. 930. See, also, Hawkeye Commercial Men's Ass'n v. Christy, 8 Cir., 294 F. 208, 40 A.L.R. 46; Kirkby v. Federal Life Ins. Co., 6 Cir., 35 F.2d 126; Commonwealth Casualty Co. v. Aichner, 8 Cir., 18 F.2d 879.
This jurisdiction is committed to these principles:
(1) "An insurance policy is a contract and, if couched in unambiguous and clear language, should be construed as other contracts." Omar Baking Co. v. Employers Liability Assurance Corporation, 130 Neb. 365, 264 N.W. 873; Howie v. Cosmopolitan Old Line Life Ins. Co., 132 Neb. 367, 272 N.W. 207.
(2) "Where there is no uncertainty as to the meaning of an insurance...
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