Leidenger v. Pacific Mut. Life Ins. Co. of Calif

• Citation: 135 So. 85,18 La.App. 348
• Decision Date: 08 June 1931
• Docket Number: 13,725
• Court: Court of Appeal of Louisiana (US)
• Parties: LEIDENGER v. PACIFIC MUT. LIFE INS. CO. OF CALIF

135 So. 85

18 La.App. 348

LEIDENGER v. PACIFIC MUT. LIFE INS. CO. OF CALIF

No. 13,725

Court of Appeals of Louisiana, Orleans

June 8, 1931

Rehearing Refused July 1, 1931.

Writ of Certiorari and Review Granted by Supreme Court October 6 1931.

Opinion and Decree of Supreme Court January 4, 1932.

Appeal from Civil District Court, Parish of Orleans, Division "D". Hon. Walter L. Gleason, Judge.

Action by Mrs. Annabel Leidenger against the Pacific Mutual Life Insurance Company of California.

Judgment for plaintiff, and defendant appealed.

Judgment affirmed.

Benjamin Y. Wolf, of New Orleans, attorney for plaintiff, appellee.

Eugene J. McGivney and Solomon S. Goldman, of New Orleans, attorneys for defendant, appellant.

WESTERFIELD J. JANVIER, J. concurring.

OPINION

WESTERFIELD, J.

The plaintiff in this case, the beneficiary in a life insurance policy upon the life of her deceased husband, Ferdinand H. Bernier, brings this suit for $ 2,000, the face value of the policy. Ferdinand Bernier died April 5, 1930, as the result of an aeroplane accident which occurred at a point somewhere between Dallas and Houston, Tex.

The defendant denies liability upon the ground that the policy contained a clause limiting its liability to the return of premiums paid, which, in this instance, amounted to $ 94, when the death of the insured occurred in aerial navigation except as a fare-paying passenger in a licensed commercial aircraft, operated by a licensed pilot, and flying in a regular civil airway between definite established airports. It is averred that Bernier was killed under circumstances not within the exception mentioned; consequently it is claimed that plaintiff is entitled to a judgment for not more than $ 94, the amount of premiums paid.

There was judgment below in favor of plaintiff as prayed for, and defendant has appealed.

There is no dispute as to the facts. The policy which the defendant company issued which, of course, was the contract between the parties, stipulated that, in the event of the death of Ferdinand H. Bernier, the Pacific Mutual Life Insurance Company of California would pay plaintiff, as widow and beneficiary, $ 2,000. The policy, however, contained certain stipulations qualifying this main undertaking. For example, if within five years from the date of the policy the insured should engage in any military or naval service in time of war and should die in the service within six months thereafter or during the war, the liability of the company was limited to "any outstanding dividend additions, together with any dividends left to accumulate and accrued interest thereon, and to the return of the premiums paid hereon."

There was also a suicide clause stipulating that, in the event the insured should, within one year of the date of the policy, commit suicide, whether sane or insane, the liability under the policy should be limited to an amount equal to the premiums paid thereon.

There was also a stipulation that, in the event of non-payment of premiums within a certain period mentioned in the policy, it should be void and "without value" except as set forth in the paragraphs marginally headed "Non-Forfeiture" and "Automatic Non-Forfeiture."

The policy also contained the clause relied on by defendant, reading as follows:

"It is hereby agreed and understood, in the event of the death of the insured arising, in whole or in part, directly or indirectly, from engaging in aerial navigation, except while riding as a fare paying passenger in a licensed commercial air craft provided by an incorporated common carrier for passenger service, and while such air craft is operated by a licensed transport pilot and is flying in a regular civil airway between definitely established air ports, the only liability under this policy shall be for a sum equal to the premiums paid hereon, and the policy shall thereupon be terminated."

There was also an "incontestable clause" relied upon by plaintiff, which reads as follows:

"This policy and the application therefor constitute the entire contract between the parties and such contract shall be incontestable after it shall have been in force, during the lifetime of the insured, for one year from the date of the...