Masonic Acc. Ins. Co. v. Jackson

• Decision Date: 31 March 1925
• Docket Number: No. 12068.,12068.
• Citation: 147 N.E. 156
• Parties: MASONIC ACC. INS. CO. et al. v. JACKSON.
• Court: Indiana Appellate Court

147 N.E. 156

MASONIC ACC. INS. CO. et al.

v.JACKSON.

No. 12068.

Appellate Court of Indiana.

March 31, 1925.

Appeal from Superior Court, Marion County; Sidney S. Miller, Judge.

Action by Leona Jackson against the Masonic Accident Insurance Company and others. From a judgment for plaintiff, defendants appeal. Reversed, with directions.

Orbison, Zechiel & Orbison, of Indianapolis, for appellants.

Oscar C. Hagemier, and Burke G. Slaymaker, both of Indianapolis, for appellee.

McMAHAN, J.

Action by appellee on an insurance policy insuring Joseph L. Jackson against accidental death and disability. The policy contained a clause reading in part as follows:

“Indemnity under this policy shall not be payable for any death or disability that may be caused or contributed to wholly or in part, by any of the following causes: *** While engaged in aviation or ballooning.”

The insured died from an accident received by him while riding as a passenger in an aeroplane operated by another person as pilot. Was the insured while riding as a passenger in the aeroplane “engaged in aviation”? The Century Dictionary defines aviation as:

“The art or act of flying, specifically, the science or art of directing and controlling flying machines; the art of navigating the air with machines heavier than air.”

“Engaged,” as used in the policy, is an intransitive verb, and is defined in the Century Dictionary as follows:

“To occupy one's self; be busied; take part; as to engage in conversation; he is zealously engaged in the cause.”

Appellee would have us insert and read into the policy the word “occupation” or the word “business,” so as to make the phrase read, “While engaged in aviation as an occupation or as a business.” We cannot do this without limiting the natural and ordinary meaning of the words used by the parties. Classification of risks and premiums as affected by change in occupation is provided for by another provision of the policy and is not involved in this action.

In Travelers' Insurance Co. v. Peake, 82 Fla. 128, 89 So. 418, and in Bew v. Travelers' Ins. Co., 95 N. J. Law, 533, 112 A. 859, 14 A. L. R. 983, the policy in each case provided that:

“The insurance hereunder shall not cover injuries fatal or nonfatal *** sustained by the insured while participating in or in consequence of having participated in aeronautics.”

The insured in each case took passage in an airplane, which was being operated for hire for the purpose of carrying passengers on various short trips. The court in the Peake Case in denying liability, said:

“A passenger in an airplane flying in the air, whether he takes part in the operation of the airplane or not, is ‘participating in aeronautics'; within the intent and meaning of the provisions specifically excepting such a risk from the indemnity contract contained in the policy.”

In the Bew Case, after stating that courts being adverse to forfeitures would in case of doubt or ambiguity adopt that construction which prevents a forfeiture, if such construction was reasonably deducible from the words used, said:

“Where, however, it becomes necessary to construe words or phrases, the ordinary and usual meaning of the words must be sought and given to them. But where apt words are used to express the meaning of the party using them, the courts will not adopt a strained and improbable...