Preferred Acc. Ins. Co. v. Rhodenbaugh, 10385.

• Decision Date: 04 April 1947
• Docket Number: No. 10385.,10385.
• Citation: 160 F.2d 832
• Parties: PREFERRED ACC. INS. CO. v. RHODENBAUGH.
• Court: U.S. Court of Appeals — Sixth Circuit

160 F.2d 832 (1947)

PREFERRED ACC. INS. CO. v. RHODENBAUGH.

No. 10385.

Circuit Court of Appeals, Sixth Circuit.

April 4, 1947.

Howard C. Walker, of Akron, Ohio, for appellant.

Charles F. Scanlon, of Akron, Ohio, for appellee.

Before HICKS, ALLEN, and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

This appeal arises out of an action upon an insurance policy which was tried to the court, jury trial being waived. The sole question is whether the appellee's decedent, Ralph Rhodenbaugh, was covered by the contract of insurance issued by appellant on August 1, 1945, to Goodyear Aircraft Corporation of Akron, Ohio, hereinafter called Goodyear.

The facts are stipulated, and are in substance as follows:

On August 10, 1945, Rhodenbaugh, an employee of Goodyear, was instantly killed while working in the course of his employment, by being struck by a moving Corsair airplane.

At this time Goodyear was engaged in the production of a fighter plane called the Corsair, a single-seated plane which was required to be flight tested in accordance with specifications of the United States Navy. Goodyear employed pilots, engineers and mechanics to carry on the flight testing operations, which included all operations preparatory to actual flight, the flight, itself, the handling of crabs or complaints, repairs, etc., between flights. In addition to tests in the air, the rigging of the airship, the cycle of the landing gear, the brakes, and the engine were tested and adjusted, and instruments were inspected, as a part of the flight testing operations.

Rhodenbaugh was employed by Goodyear as a "motor mechanic (flight test)." At times he operated Corsair aircraft upon the concrete apron of the flight test line for the purpose of checking the brakes. He was not a pilot, and did not take any planes into the air.

On August 10, 1945, at approximately 1 o'clock in the afternoon, Rhodenbaugh was working on the planes located on the flight test line, preparatory to getting them ready for flight, when a Corsair plane which had developed serious motor trouble landed upon the line. Rhodenbaugh went to this plane and examined the crab sheet, which is the pilot's report concerning the plane's operation. The difficulty presented was one which Rhodenbaugh could not immediately diagnose. He therefore rode down the flight test line on a gasoline motor scooter, to pick up the liaison engineer, Fahrbach, to assist in remedying the difficulty. As Fahrbach and Rhodenbaugh were riding down the flight test line, another Corsair plane started taxiing down the runway behind the scooter, traveling in the same direction. As the plane came near the scooter, the whirling propeller caught the two men, instantly killing them.

Goodyear purchased insurance coverage from the appellant in August, 1944, for the benefit of its employees. Originally the coverage was based upon a binder with the understanding that a policy would be issued by the appellant when all the terms could be agreed upon between the parties.

After some correspondence between Goodyear and Johnston and Johnston, general agents of the appellant, there was a conference in New York City on February 5, 1945, between representatives of Goodyear and Johnston and Johnston, to work out the details of coverage of the contract to be issued. A blanket aviation accident insurance policy, No. B1 510, was later issued to Goodyear, delivered to it, and renewed on the same terms and conditions on August 1, 1945, the renewal policy being No. B1 511.

The items of the policy involved read as follows:

"Item 3. The Employees to be insured are: All Employees —

"Item 4. The Policy shall cover: All Employees: — While engaged in flight testing of aircraft or while acting as Pilots or Crew Members including entering or alighting from aircraft and also including being struck on land or water by a moving aircraft part while acting in the course of their employment. * * *"

Also involved in the consideration is Item 6, which figures the premium rates for the policy at so much per hour or fraction thereof of flying time for each employee while flight testing.

The District Court gave judgment for the appellee. The appellant contends that this judgment is erroneous on the ground that Rhodenbaugh was not engaged in flight testing of aircraft, and was not a crew member of an aircraft within the meaning of the policy, at the time of the accident.

We think the judgment of the District Court is clearly correct. Under the stipulation, the flight testing of airplanes includes all the operations required for making tests, including those preparatory to actual flight, the flight itself, the handling of crabs or complaints and repairs in between flights. Rhodenbaugh at the time of the accident was working on the flight test line, warming up engines and performing operations preparatory to getting planes ready for flight. It was his duty to check and repair the Corsair plane which engaged his attention at the very moment of the accident, and to secure the engineer to assist him. Under the conceded facts, this action was part of the operations preparatory to actual flight, and thus included in flight testing. Rhodenbaugh was classified by his employer as a...