Missouri State Life Insurance Co. v. Martin

• Decision Date: 19 February 1934
• Docket Number: 4-3365
• Parties: MISSOURI STATE LIFE INSURANCE COMPANY v. MARTIN
• Court: Arkansas Supreme Court

69 S.W.2d 1081

188 Ark. 907

MISSOURI STATE LIFE INSURANCE COMPANY v. MARTIN

4-3365

Supreme Court of Arkansas

February 19, 1934

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

STATEMENT BY THE COURT.

This appeal is prosecuted from a judgment against appellant insurance company in favor of appellee, the beneficiary in an accident policy for double indemnity alleged to be due under the terms of the policy.

Appellee is named beneficiary in the policy issued to George W. Martin by the above insurance company on June 7, 1921, in the amount of $ 1,000. There was a rider or supplemental agreement attached to and made a part of the policy for the payment of $ 2,000, double the face of the policy, if the death of insured was accidental as hereinafter defined:

"This double indemnity, payable in event of the accidental death of the insured, shall be due if written affirmative proof shall be furnished the company that such death occurred before the anniversary date of this policy next preceding the sixtieth birthday of the insured and during the premium-paying period of this policy while no premium is in default, and if death results independently and exclusively of all other causes from bodily injuries effected directly from external, violent and accidental means, within ninety days from the happening of such injuries, of which, other than in the case of drowning, there shall be visible contusion or wound on the exterior of the body, except that this double indemnity will not be payable if the insured's death shall result from suicide, whether sane or insane, or any attempt thereat, sane or insane, or directly or indirectly, wholly or in part, from poisoning, infection, or any kind of illness or disease, or from any violation of law by the insured or from bodily injuries received while engaged in military or naval service in time of war, or from participation in aviation or submarine operations, and provided further that, if claim for any total and permanent disability benefits shall be allowed this provision as to double indemnity shall be null and void."

This suit was brought for $ 1,000, claimed to be due as double indemnity, under the rider in the policy, the face thereof, $ 1,000, having already been paid to the beneficiary.

The answer denied any liability under the terms of the policy and alleged that the accident was not covered by the double indemnity rider or provision in the policy because said provision expressly exempts the company from liability from injuries received "from participation in aviation or submarine operations."

A jury was waived, and the case tried before the court on an agreed statement of facts.

The undisputed facts are that, on the morning of the 18th day of April, 1933, George W. Martin was invited by one W. N Gregory to make a trip by aeroplane from Augusta, Woodruff County, Arkansas, to St. Louis, Missouri, free of expense to said George W. Martin, and as a guest, for a mere pleasure trip with the said W. N. Gregory. At a point approximately 30 miles from the city of St. Louis, in Monroe County, Illinois, the aeroplane, in which Martin was riding as a guest of Gregory, through accident, crashed and struck the ground with such force that the said George W. Martin was instantly killed. Martin at the time was mayor of Augusta, Arkansas, and, in addition thereto, was engaged as a railroad agent at Augusta for the Augusta Transport & Transportation Company. Martin had no knowledge of the art of aviation, and did not before this occasion use aeroplanes as a means of transportation, but on this occasion merely accepted the invitation of his friend, W. N. Gregory, to be his guest on a pleasure trip to the city of St. Louis.

Proof of death by accident was made as required by the contract, and, in response thereto, the company issued its check for $ 1,000, the face of the policy, to the appellee, the beneficiary therein, "for full settlement of all claims under this policy as to the face amount thereof without prejudice to the rights of either party in connection with any claim for double indemnity benefits."

The court declined to make separate findings of fact, and declare the law as requested by appellant, and rendered judgment for $ 1,000 sued for in favor of appellee, from which judgment this appeal is prosecuted.

Judgment affirmed. Petition for rehearing overruled.

Allen May, J. R. Burcham, Charles D. Frierson and Charles Frierson, Jr., for appellant.

J. Ford Smith and W. J. Dungan, for appellee.

KIRBY, J., BUTLER, J., supplemental opinion on rehearing. SMITH, J., dissenting.

OPINION

KIRBY, J., (after stating the facts).

There is but one question involved in this appeal, viz., whether the death of the insured under the circumstances herein resulted from an accident covered by the double indemnity provision of the policy which excepts bodily injuries received "from participation in aviation or submarine operations."

Aviation is defined in Funk & Wagnall's Dictionary as follows: "Aviation--is the art of flying, especially the management of aeroplanes."

"Participation" is defined in Webster's Dictionary as follows: 1. The state of sharing in common with others. 2. The act or state of receiving or having a part of something. 3. Distribution or division into shares.

It has been held that it was not necessary for one to have mechanical control over a plane in order to participate in its operation, but, when one imposes and enforces his judgment in the venture or about an undertaking solely for his purpose, he is effectively participating in the operation of the plane. First Nat. Bank of Chattanooga v. Phoenix Mut. Life Ins. Co., 62 F.2d 681.

It appears here, however, that there was no contractual relation between the pilot of the plane and the insured, and no expectation of a fare to be paid and collected for the trip, the insured being an invited guest only, and not a passenger, and it cannot be said that insured received the injuries from which he died "from participation in aviation operations," within the meaning of the terms of the policy, and is thereby excluded from its coverage.

The contract of insurance was ambiguous and susceptible to more than one reasonable construction, and the one most favorable to the insured should be adopted. Travelers' Protective Ass'n v. Stephens, 185 Ark. 660, 49 S.W.2d 364; National Life Ins. Co. v. Whitfield, 186 Ark. 198, 53 S.W.2d 10; Gits v. N. Y. Life Ins. Co., 32 F.2d 7; Charette v. Prudential Ins. Co., 202 Wis. 470, 232 N.W. 848.

No error was committed in allowing attorney's fee and the statutory penalty, since the entire sum contracted to be paid under the rider in the policy was recovered herein, and the appellee was therefore entitled to a judgment for the penalty and a reasonable attorney's fee, "and the fact that the company believes it has a meritorious defense, and in good faith defends the case does not excuse it from the application of the statute." Life & Casualty Ins. Co. of Tenn. v. McCray, 187 Ark. 49, 58 S.W.2d 199.

We find no error in the record, and the judgment is affirmed.

BUTLER, J., (supplemental opinion on rehearing). To sustain the contention that the death of the insured resulted from an accident within exemption from liability within the meaning of the terms of the policy, counsel for appellant refer us to the following cases: Bew v. Travelers' Ins. Co., 95 N.J.L. 533, 112 A. 859, 14 A. L. R. 983; Travelers' Ins. Co. v. Peek, 82 Fla. 128, 89 So. 418 (1921); Meredith v. Bus. Men's Acc. Co., (Mo.) 213 Mo.App. 688, 252 S.W. 976 (1923); Pittman v. Lamar Life Ins. Co., 17 F.2d 370 (1927); Tierney v. Occ. Life Ins. Co., 89 Cal.App. 779, 265 P. 400 (1928); Wendorff v. Mo. St. Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99 (1927); Gits v. N. Y. Life Ins. Co., 32 F.2d 7 (1929); Peters v. Prudential Ins. Co., 133 Misc. 780, 233 N.Y.S. 500 (1929); Price v. Prudential Ins. Co., 98 Fla. 1044, 124 So. 817 (1929); Head v. N. Y. Life, 43 F.2d 517, 520 (1930); First Natl. Bk. v. Phoenix Co., (C. C. A.) 62 F.2d 681. We are also referred to the notes assembled in 14 A. L. R. 986; 61 A. L. R. 846; 69 A. L. R. 331; 83 A. L. R. 384, and to the case of Benefit Ass'n v. Hayden, 175 Ark. 565, 299 S.W. 995. In their brief for rehearing, the following additional authorities are cited in support of their contention: Irwin v. Prudential Ins. Co., 5 F.Supp. 382, February 19, 1934; Goldsmith v. New York Life, 69 F.2d 273; 6 Couch's Enc. Ins. Law, p. 1252; 6 Cooley's Briefs on Ins., (2d ed.) p. 5309.

Counsel for the appellant admit that where the words "engaged in aviation" are used in the exempting clause of a policy the exemption from liability will not apply to the case of a mere passenger, but they contend, on the authorities cited, that the words "participate in aviation" are to be distinguished from "engaged in aviation" and are sufficiently broad in their meaning to include any one riding in an aeroplane whether as a pilot or a passenger only. Upon an examination of the cases cited, we find those most nearly sustaining the contention are Bew v. Travelers' Ins. Co.; Travelers' Ins. Co. v. Peek, and Meredith v. Bus. Men's Acc. Co., supra. In the first mentioned case the applicable clause is as follows: "The insurance hereunder shall not cover * * * injuries, fatal or non-fatal, sustained by the insured while participating in, or in consequence of having participated in, aeronautics." The insured was killed while a passenger in an airplane. After quoting the definition of the word "aeronautics" given by the Ency. Britt, "aeronautics is the art or practice of sailing in, or navigating, the air," the court held that there was nothing in the definition to confine it to those active in piloting air vessels...