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

• Decision Date: 26 April 1938
• Docket Number: No. 8670.,8670.
• Citation: Marks v. Mutual Life Ins. Co. of New York, 96 F.2d 267 (9th Cir. 1938)
• Parties: MARKS v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Ninth Circuit

96 F.2d 267 (1938)

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

No. 8670.

Circuit Court of Appeals, Ninth Circuit.

April 26, 1938.

Barnett E. Marks, of Phoenix, Ariz., and Aaron Levinson and Albert E. Marks, both of Los Angeles, Cal., for appellant.

Fennemore, Craig, Allen & Bledsoe, of Phoenix, Ariz. (Frederick L. Allen, of New York City, of counsel), for appellee.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

Appellant is the beneficiary under a policy on her husband's life, also insuring in double the life principal against his accidental death.This coverage had an exception of death "from participation in aeronautics."

The company admits that under the decisions in Mutual Benefit Health & Accident Ass'n v. Moyer, 9 Cir., 94 F.2d 906, andGregory v. Mutual Life Ins. Co. ofNew York, 8 Cir., 78 F.2d 522, the exception does not exclude a passenger on an aeroplane.It argues, however, that in October, 1928, when the policy was issued, the term "participation in aeronautics" had a commonly accepted meaning — including mere travelers in planes — because of certain decisions in two state Supreme Courts and two intermediate appellate courts.It admits that the trend of decisions since these earlier cases is to the contrary, not only in the federal courts, such as in the Moyer and Gregory Cases, supra, but in the state courts.It claims this trend is due to a review in the light of the development of air travel.

However, in 1927, the year before the policy in question was issued, the statistics of the "Air Craft Year Book," published by the Aeronautical Chamber of...