Martin v. Mutual Life Ins. Co., 4-3463.

• Decision Date: 21 May 1934
• Docket Number: No. 4-3463.,4-3463.
• Citation: Martin v. Mutual Life Ins. Co., 71 S.W.2d 694, 189 Ark. 291 (Ark. 1934)
• Parties: MARTIN v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Arkansas Supreme Court

71 S.W.2d 694

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

No. 4-3463.

Supreme Court of Arkansas.

May 21, 1934.

Motion for Judgment Withdrawn June 13, 1934.

Appeal from Circuit Court, Woodruff County; W. D. Davenport, Judge.

Action by Susie J. Martin against the Mutual Life Insurance Company of New York.Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

J. Ford Smith and W. J. Dungan, both of Augusta, for appellant.

Frederick L. Allen, of New York City, and Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellee.

JOHNSON, Chief Justice.

This appeal involves the construction of the following exemption contained in the double indemnity clause of a life insurance policy issued by appellee as insurer upon the life of George W. Martin, deceased, in which Susie J. Martin, appellant, was designated as beneficiary, to wit: "The Double Indemnity will be payable upon receipt of due proof that the Insured died as a direct result of bodily injury effected solely through external, violent, and accidental means, independently and exclusively of all other causes, and of which, except in the case of drowning or asphyxiation, there is evidence by a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days after the date of such injury; provided that the Double Indemnity shall not be payable if death resulted from self-destruction, whether sane or insane, or from military or naval service in time of war, or from any act incident to war, or from engaging in riot or insurrection, or from committing an assault or felony, or from participation in aeronautics, or directly or indirectly from disease or bodily or mental infirmity."

The insured was instantly killed, when the airplane in which he was an invited guest crashed and struck the ground while navigating the air between Augusta, Ark., and St. Louis, Mo.

The facts and circumstances of the crash and the death of the insured are identical with those narrated in Missouri State Life Insurance Company v. Martin(Ark.)69 S.W.(2d) 1081, 1082, and reference is here made thereto.

The exemption here employed by the insurer "or from participating in aeronautics" differs only from the exemption contained in Missouri State Life Ins. Co. v. Martin, supra, as follows: "Or from participation in aviation or submarine operations" by the elimination of the word "operations."

It is true that the opinion in Missouri State Life Ins. Co. v. Martin, supra, was put upon the ground that the use of the word "operations" limited the meaning and effect of the word "participation" which preceded it, and when thus construed conveyed the definite meaning and effect of not exempting the insurer from liability as against an invited guest riding in an airplane.The opinion as thus construed is not in conflict with any other case which has been called to our attention in briefs.When the word "operations" is eliminated, however, a very different case is presented and must be decided as of first impression by us.In Missouri State Life Ins. Co. v. Martin, supra, although stated as dictum, we said as a concurring basis of the opinion and the conclusion thereafter determined that:

"The distinction thought by the courts to exist between `engage in aeronautics' and `participation in aviation' may be apparent to, and approved by, those learned in the niceties of the language and accustomed to its precise use, but it is to be doubted whether these hairsplitting and subtle distinctions would occur to, or be understood by, the majority of the thousands of persons who seek insurance against the many hazards to life and limb which are likely to occur to the most prudent and fortunate.Words and phrases used in insurance policies should be construed by their meaning as used in the ordinary speech of the people and not as understood by scholars.

"It might well be imagined that, if the average tradesman, artisan, or farmer, although he had many times taken passage on a railroad train and intended again soon to do so, if asked if he had participated, or intended to participate, in railroading, would at once answer, `No'; and if then asked if he had engaged in, or intended to engage in railroading, would reply, `I have just told you, "No."'It might well be assumed that to his mind the word `participate' in the connection used in the question would imply some action, some `taking part in' the movement of the trains, the upkeep of the property, or management of its business.He likely would not think that by the question was meant to learn...