Masonic Accident Insurance Company v. Jackson

Decision Date23 January 1929
Docket Number25,711
Citation164 N.E. 628,200 Ind. 472
PartiesMasonic Accident Insurance Company v. Jackson
CourtIndiana Supreme Court

1. INSURANCE---Accident Insurance---Accident while "Engaged in Aviation"---Not Applicable to Passenger in Aeroplane.---An accidental death while riding as a passenger in an aeroplane is not within a provision of an accident policy that the insurance did not cover any accident occurring while the insured was "engaged in aviation," as the definition of "aviation" is the art of flying, especially the management of aeroplanes and the expression "engaged" in a business implies continuity of action and does not aptly describe a single isolated act of riding in an aeroplane. p. 481.

2. INSURANCE---Ambiguous Contract---Construction Favorable to Insured Preferred.---Where an insurance contract is so drawn as to be ambiguous and is fairly susceptible of two constructions, so that reasonably intelligent men on reading it would honestly differ as to its meaning, the courts will adopt the construction most favorable to the insured. p. 481.

3. INSURANCE---Accident Insurance---Liability---Exception Therefrom.---Where an accident insurance policy, by clear and comprehensive language, insures against injury or death by accidental means, the liability will not be destroyed by the language of an exception unless such language is clear and free from reasonable doubt. p. 482.

4. INSURANCE---Construction of Policy---So as to Effectuate Indemnification.---An insurance policy should be so construed as to effectuate indemnification to the insured or his beneficiary against loss rather than to defeat it. p. 482.

5. INSURANCE---Construction of Policy---Construed to Prevent Defeat of Indemnification.---Where any reasonable construction can be placed on an insurance policy that will prevent the defeat of the insured's indemnification for a loss covered by the language of the policy, that construction will be given. p. 482.

6. INSURANCE---Accident Insurance---Construction of Policy---Duty of Court.---In an action on an accident policy it is the duty of the court to give such construction to the policy, if the language fairly admits, as will make it of some substantial value and carry out the intention expressed therein that there is a liability when injury or death occurs from accidental injury. p. 482.

From Marion Superior Court (A22,391); Sidney S. Miller, Judge.

Action by Leona Jackson against the Masonic Accident Insurance Company (now Monarch Accident Insurance Company). From a judgment for plaintiff, the defendant appealed to the Appellate Court. (Transferred to Supreme Court under § 1357 Burns 1926.)

Affirmed.

Orbison Zechiel & Orbison, for appellant.

Oscar C. Hagemier, Burke G. Slaymaker and Lawrence B. Moore, for appellee.

OPINION

Willoughby, J.

This was an action brought on an insurance policy by Leona Jackson, appellee, who was the beneficiary. It appears from the facts alleged in the complaint that the defendant is an insurance corporation duly organized under and pursuant to the laws of the State of Massachusetts, and is now and at all times has been engaged in insuring persons against loss by accident and accidental death.

On June 25, 1919, under the corporate name of Masonic Mutual Accident Insurance Company, appellant executed to one Joseph L. Jackson, its policy whereby the company insured said Jackson beginning at 12 o'clock noon on that day and to continue thereafter so long as said Joseph L. Jackson, should pay a quarterly premium of $ 6. A copy of said policy is filed and made a part of the complaint. That said defendant promised, in the event of bodily injuries resulting in the death of said Joseph L. Jackson, caused solely by accidental means, to pay this plaintiff, the wife of said Jackson, the sum of $ 1,200, plus a yearly increased accumulation of ten per cent. of said amount for each full year that the said policy was maintained continuously in force until July 1, 1923. That said policy continued and remained in force from its date to and upon April 29, 1923. That on April 29, 1923, and while said policy was in full force and effect, the said Joseph L. Jackson received a bodily injury caused solely by accidental means, to wit: that while riding as a passenger in an aeroplane, the pilot of said aeroplane, one Ralph Hunting, lost control of said aeroplane and thereby accidentally allowed the same to crash to the earth, and that the violence of the contact of the said aeroplane with the earth caused a part of said aeroplane accidentally to forcefully, and with great violence, strike the head of said Jackson, and then and there to leave a visible contusion upon the head of him, the said Jackson, which said injury caused concussion of the brain, from which said Jackson died the following day after said accident and injury. That from said 25th day of June, 1919, continuously to, and at the time of the death of said Joseph L. Jackson, plaintiff was his wife. That the said Joseph L. Jackson and this plaintiff each duly performed all of the conditions of the said policy to be by them performed. That said plaintiff gave immediate notice of said injury and death to said defendant and that said plaintiff furnished to defendant due proof of loss as required by said policy as soon as blanks were furnished her by said defendant. That, more than sixty days before the commencement of this action, the plaintiff filed proof of loss in accordance with the requirements of said policy, but the defendant has not paid the sum due under said policy and has refused to pay said sum. That on June 19, 1923, the defendant, by its letter in writing to this plaintiff, denied any liability to plaintiff under said policy that of the false claim and statement of defendant, and because said death was not one insured against by said policy, and thereby defendants waived proofs of death and any defects or omissions in the notice of death and proofs of death theretofore furnished by plaintiff to defendant. Plaintiff says that the said death of said Joseph L. Jackson, was not caused or contributed to by the said Jackson, wholly or in part, by the use of intoxicating liquors, or narcotics, or intentionally, or while the said Jackson was engaged in aviation or ballooning, or by suicide or any attempt thereat, . . . or by any other means whatsoever excepted by said policy.

It is further alleged in said complaint that on June 25, 1919, the defendant was engaged in said business of insurance by and under the corporate name of Masonic Mutual Accident Insurance Company; that, when this action was commenced, the defendant was engaged in said insurance business by the name and style of "Masonic Accident Insurance Company"; that, by due form of law, said defendant has changed its corporate name to Monarch Accident Insurance Company, since this action was commenced. And that the corporate name of said defendant now is Monarch Accident Insurance Company. That said Masonic Mutual Accident Insurance Company, said Masonic Accident Insurance Company and said Monarch Accident Insurance Company are one and the same corporation.

A demurrer was filed, alleging that the complaint does not state facts sufficient to constitute a cause of action. This demurrer was overruled, to which ruling the appellant at the time excepted, and refusing to plead further, final judgment was rendered against the appellant for the amount due on the policy, with interest and costs. From such judgment, this appeal was taken.

The only error assigned is that the court erred in overruling the demurrer to said complaint. The only argument made in favor of said demurrer was that the company was not liable on account of a clause in said policy 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: the use of intoxicating liquors or narcotics by the insured; intentional injuries; while engaged in aviation or ballooning, suicide or any attempt thereat while sane or insane; . . ."

The appellee claims that the company cannot avoid payment of the policy on the alleged ground that the insured was engaged in aviation.

The new Standard Dictionary defines "aviation" as the art of flying, especially the management of aeroplanes.

In the case of Benefit Assn. Ry. Employees v Hayden (1927), 175 Ark. 565, 299 S.W. 995, it was held that one killed while a passenger in an aeroplane was not engaged in aeronautics. The insured was killed on October 17, 1926, at Stuttgart, Arkansas, in an aeroplane accident. The facts in relation to the accident show that Richard Schillberg was operating an aeroplane at a rice carnival or rice fair at Stuttgart, Arkansas, and was charging passengers $ 2.50 for each trip on which they rode with him. Some time during the day, Paul Trotter, the insured, took an aeroplane trip with Schillberg, riding as a passenger and paid the usual fee or fare therefor. Later in the day, as he stood near the aeroplane, the pilot of the aeroplane, in soliciting passengers for another trip, saw Paul Trotter, and asked him if he did not want to take another ride. On this occasion, Paul Trotter accepted this invitation to become a passenger to ride for a second time, and the second flight was made. The second flight was upon the same condition of payment as the first flight, but it is not known by the parties whether the payment was made on either occasion before ascending or after alighting from the aeroplane. On the occasion of the second flight, the pilot of the machine attempted to perform some "stunts," and, in doing so, lost control of his machine, when perhaps not more than 300 feet above the ground, and the aeroplane fell, killing...

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1 cases
  • Masonic Acc. Ins. Co. v. Jackson
    • United States
    • Indiana Supreme Court
    • 23 January 1929
    ... ... Miller, Judge.Action by Leona Jackson against the Masonic Accident Insurance Company (now Monarch Accident Insurance Company). Judgment for plaintiff, and defendant ... ...

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