North American Acc. Ins. Co. v. Pitts

• Decision Date: 26 March 1925
• Docket Number: 7 Div. 549
• Citation: 104 So. 21,213 Ala. 102
• Parties: NORTH AMERICAN ACC. INS. CO. v. PITTS.
• Court: Alabama Supreme Court

104 So. 21

213 Ala. 102

NORTH AMERICAN ACC. INS. CO. v. PITTS.

7 Div. 549

Supreme Court of Alabama

March 26, 1925

Rehearing Denied April 30, 1925

Appeal from Circuit Court, Talladega County; S.W. Tate, Judge.

Action on policy of insurance by Mary Lee Pitts against the North American Accident Insurance Company. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Knox Dixon, Sims & Bingham, of Talladega, for appellee.

MILLER J.

This is a suit on an insurance policy by Mary Lee Pitts, the beneficiary, against the North American Accident Insurance Company, a body corporate, that issued the policy against the accidental death of Hugh D. Brown. The deceased met his death on August 19, 1923, through external, violent, and accidental means, solely and independently of all other causes, by the fall of an aeroplane from the air in which he was riding. The defendant pleaded general issue, in short by consent, with leave to give in evidence any matter that might be specially pleaded, with like leave to plaintiff to give in evidence any matter admissible in reply thereto. The jury returned a verdict in favor of the plaintiff, and from a judgment thereon by the court this appeal is prosecuted by the defendant.

The policy was originally for $2,000, but it provided an increase of 10 per cent. per annum on each annual renewal until a total increase of 50 per centum of the original amount had been reached on benefits for death under circumstances mentioned therein. This policy had been annually renewed for more than five years before the death of the insured, and this increased the original amount from $2,000 to $3,000 for benefits for death under certain circumstances provided in the policy. So the defendant under the terms of the policy was liable to the beneficiary for $3,000, with interest, if death of insured (Hugh D. Brown) resulted "within thirty days from the date of accident from bodily injuries inflicted through external, violent and accidental means and solely and independently of all other causes, and only if such injuries are received as follows: (1) While actually riding as a passenger in a place regularly provided for the transportation of passengers within a surface, underground or elevated railroad car, steamboat, automobile, omnibus, cab or other public conveyance provided by a common carrier, for passenger service only."

The policy provided if the death resulted within the 30 days from an accident otherwise than as above specified, the beneficiary would be entitled to only one-twentieth of said amount, which would be one hundred and fifty dollars.

The plaintiff requested the court in writing to charge the jury as follows:

"The court charges the jury that, if they believe the evidence in this case, they must find for the plaintiff for the sum of $3,000 with interest from August 19, 1923."

The court gave the foregoing charge, and it is assigned as error by the defendant.

The defendant asked the court to give the following written charge to the jury:

"I charge you, gentlemen of the jury, that if you believe the evidence in this case, your verdict must not be for more than $150, with interest from August 19, 1923."

This charge was refused by the court, and it is assigned as error by the defendant.

It is admitted the policy was in force, that notice of death thereunder was properly given, that the principal amount of the policy for loss of life was $3,000, and that the policy had been in force by renewals for more than five years when the insured was killed.

Hugh D. Brown and others were at Camp Walton, in the state of Florida, on August 19, 1923. He and four others on that day entered an airship or aeroplane with the pilot and owner, Albert Whitted, for a trip or fly in the air, and they paid or agreed to pay $25 for the flight. The aeroplane fell while in the air, and Hugh D. Brown and the five others therein were killed.

The appellee contends the aeroplane at the time of the accident was "a public conveyance provided by a common carrier for passenger service only" within the meaning of the policy; the trial court so held, and appellee claims the court properly gave the written charge, with hypothesis, requested by plaintiff for the sum of $3,000, with interest.

The appellant contends the aeroplane was not used by Whitted as a common carrier of passengers under the meaning of the policy at the time of the death of Hugh D. Brown, but was merely an amusement enterprise operated by him for hire, for the purpose of giving a thrill to those who cared to patronize it.

We are cited to no authority, holding an aeroplane used under the circumstances as shown by this record, or under any other circumstances, has become so invested with public interest as to become a common carrier for passengers only, and to have received an adjudication thereon by the courts of last resort in the United States. However, we find the following general text in 2 Corpus Juris, 305:

"The rules governing the business of a common carrier by airship or flying machine may be readily assimilated to those applied to other common carriers."

So we must look to the evidence to see if this aeroplane when it fell, causing the death of the deceased, was such a public conveyance as then operated by its owner, Whitted, as to bring it within the term "common carrier for passenger service only," as defined by our courts, and as contemplated by the parties in the policy contract. This is the real question presented under the policy contract. Was the aeroplane "a public conveyance provided by a common carrier for passenger service only" when the deceased was killed? What is the substance of the evidence on this subject? The parties agree it is not in conflict in its material parts, and one or the other of the foregoing written charges should have been given by the court.

One Albert Whitted, an experienced aviator, was engaged in the business of visiting resorts along the Florida coast and towns in Mississippi and Tennessee during the last three years of his life with an aeroplane owned and controlled by him, and while at these places he would take persons up for flights in his plane for hire. During the summer of 1923, at the week-ends he visited Camp Walton, a summer resort in Florida, and while there his business would be to take passengers up for short flights around the bay for hire, and while there persons could, and did, make contracts with him to carry them from there to Pensacola, and other points. He would be at this resort during the week-ends, from two to three and four days; then he would return to Pensacola with his aeroplane, where he was engaged in constructing another airship for a person in Natchez, Miss. Its construction was carried on through the week when he was not at Camp Walton.

During these week-end stays at Camp Walton, the number of his flights in the air varied with the weather, the number of people desiring to take the trip, and his physical condition. He was under no general contract with any one to come to Camp Walton; he made no given number of flights per day or week he did not operate his machine on any schedule; sold no tickets; would not take less than three nor more than five persons at a time; and the charge was $5 each. The flight usually began and ended in front of the hotel. The aeroplane would rise from the water, and would not stop in its flight until it circled the bay and returned to the usual starting point. The height, direction, and time (from 10 to 15 minutes) of each trip was substantially...