Saltzman v. Great American Indemnity Co.

• Decision Date: 29 October 1953
• Docket Number: Civ. A. No. 361.
• Citation: 115 F. Supp. 944
• Parties: SALTZMAN v. GREAT AMERICAN INDEMNITY CO. OF NEW YORK.
• Court: U.S. District Court — Western District of Arkansas

115 F. Supp. 944

SALTZMAN v. GREAT AMERICAN INDEMNITY CO. OF NEW YORK.

Civ. A. No. 361.

United States District Court W. D. Arkansas, Harrison Division.

October 29, 1953.

Thomas B. Tinnon, Mountain Home, Ark., for plaintiff.

Owens, Ehrman & McHaney, Little Rock, Ark., for defendant.

JOHN E. MILLER, District Judge.

Statement

The case was submitted to the Court upon the pleadings, the stipulation of facts and exhibits thereto, and the briefs of the parties in support of their respective contentions, and the Court, having considered the same, now makes and files herein its findings of fact and conclusions of law, separately stated.

Findings of Fact

1.

The plaintiff is a citizen and resident of Mountain Home, Arkansas, in the Western District. The defendant is a corporation organized and existing under the laws of the State of New York and is engaged in and duly authorized to carry on the business of public liability insurance in the State of Arkansas. The matter in controversy, exclusive of interest and costs, exceeds the sum of $3,000.

2.

It was agreed by stipulation of parties filed on September 9, 1953, that:

"1. The defendant, Great American Indemnity Company, issued its policy of insurance numbered LHC 98924 to the plaintiff, B. N. Saltzman, on the 13th day of June, 1950. Said policy was designated a `comprehensive personal liability policy', and a photostatic copy of said policy of insurance is attached hereto and made a part hereof, it being agreed that said photostatic copy is a true and correct copy of the original and contains all of the provisions pertinent to the issues involved in this cause.

"2. On November 28, 1951, a 1949 Ryan Navion airplane owned by the Veterans of Foreign Wars of the United States and being piloted by Bruce Campbell, a salaried employee of the Veterans of Foreign Wars, was landed at the Flippin, Arkansas, airport while engaged on the official business of the owner. The Commander-in-Chief of the Veterans of Foreign Wars, Frank C. Hilton, was the only passenger in said airplane.

"3. Shortly after the landing of said plane, the aforementioned Campbell and Hilton left the airport after the pilot had been instructed by Mrs. Genevia Crane, wife of the operator of said airport, to leave the plane unlocked and with brakes off and disengaged at a place where the plane had come to rest. These instructions by Mrs. Crane were given for the purpose of facilitating the storage of said airplane in the hangar. The pilot, Bruce Campbell, complied with the instructions of Mrs. Crane and left said plane with its engines stopped or dead, with all switches, throttles, and controls in their normal position.

"4. The plaintiff, B. N. Saltzman, is a regularly licensed and practicing physician in the trade area of Mountain Home, Baxter County, Arkansas. He is also the operator of his own aircraft and has been duly licensed as a private pilot. The plaintiff had landed his own aircraft at the Flippin airport some ten or fifteen minutes prior to the landing of the airplane of the said Veterans of Foreign Wars and was informed that the national commander of the Veterans of Foreign Wars would land at that airport and remained to meet the national commander and to observe the Ryan Navion aircraft in which the commander was a passenger.

"5. After the national commander of Veterans of Foreign Wars, his pilot, and the receiption committee departed from the airport, the plaintiff, B. N. Saltzman, walked out to the Ryan Navion aircraft and, being an aviation enthusiast and having considered the purchase of such an aircraft, he availed himself of this opportunity to inspect and examine said aircraft. The plaintiff walked around the aircraft two or three times and then stepped up onto the wing at the passenger walkway to better observe the interior of the airplane cabin. The cabin hatch being unlocked and open, the plaintiff stepped into the cabin without the permission or knowledge of Hilton, Campbell, or Mrs. Crane, placed himself in the pilot seat, and began an examination of the various instruments, switches, button controls, and equipment upon said airplane. After four or five minutes of such examination, and after having actually operated various controls, switches, and control buttons, the plaintiff engaged the aircraft starter. The plaintiff engaged the starter control knowing at the time that it was the starter control and with the intention of engaging said control, but without the intent to start the engines. He engaged said starter control under the impression that it could be engaged without actually energizing or starting the engines. Due to the position of the throttle, electric system, master switch, ignition switch, electric fuel pump, and primer control, the aircraft engines energized or started when the starter control was engaged by the plaintiff, and the aircraft began to move. The plaintiff, as a result of his pilot's training, immediately and automatically sought to set the airplane wheel brakes by attempting to depress the brake foot controls, which on the airplane to which plaintiff was accustomed are an integral part of the foot actuated rudder control. The Ryan Navion airplane was not equipped with the brake actuating mechanism with which the plaintiff was familiar. When the plaintiff's efforts to engage the brakes in the aforesaid manner failed to stop the aircraft, the plaintiff became excited and began looking for the brake actuating controls. Due to the position in which the throttle had been left by the pilot of the aircraft, the aircraft accelerated in forward motion rapidly when the engines were started. During the short period of time in which the plaintiff was searching for a brake control, the aircraft traveled approximately 90 to 100 feet and crashed into the side of the Flippin airport hangar, shearing off one wing and causing the aircraft to spin into the hangar, thereby damaging the aircraft to the extent hereinafter set out. The plaintiff later learned that this particular type of aircraft was equipped with a hand-operated brake control situated on the instrument panel directly in front of the pilot's seat.

"6. The cost of repairs to the Ryan Navion airplane owned by the Veterans of Foreign Wars as a result of the collision hereinbefore set out was $3,532.08, and an action was instituted against the plaintiff in the United States District Court for the Western District of Arkansas, Harrison Division, by the Insurance Company of North America and Veterans of Foreign Wars of the United States to recover the damages they sustained as a result of said collision. A judgment was rendered against the plaintiff, B. N. Saltzman, in said action in the sum of $3,569.58, which included the costs of said action, and said justment was paid by the plaintiff in full on or about the 11th day of May, 1953, and has been satisfied of record.

"7. The policy of insurance issued to the plaintiff by the defendant on the 15th day of June, 1950, was in full force and effect at the time of the collision wherein the Ryan Navion airplane was damaged, as hereinbefore set forth. The plaintiff gave notice to the defendant company within time and in accord with the provisions of said policy of insurance. The plaintiff gave to the company additional notice of the institution of the action instituted against him by the Insurance Company of North America and the Veterans of Foreign Wars and tendered to it the defense of said cause, and, further, gave notice to the company of the rendition of the judgment and demanded payment of said judgment of the company prior to its satisfaction by the plaintiff.

"8. The company has denied that it was obligated to pay the damages paid by the plaintiff under the circumstances hereinbefore set out, contending that its policy of insurance did not cover or indemnify the plaintiff for any loss that he might sustain under the facts agreed upon in this stipulation.

"9. The plaintiff has actually paid to his attorney, Thomas B. Tinnon, the sum of $1,256.00 for his services rendered in the case of Insurance Company of North America v. Saltzman, infra.

"10. This stipulation contains all the facts pertinent to the issues involved in this cause, and no further evidence shall be offered in the disposition of this litigation."

3.

The policy issued to the plaintiff provides that the defendant agrees with the insured, subject to exclusions, conditions and other terms of the policy, "To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law * * * for damages because of injury to or destruction of property, including the loss of use thereof."

Under the title "Exclusions" the policy provides that it does not apply "to the ownership, maintenance or use, including loading and unloading, of * * aircraft," or to "injury to or destruction of property used by, rented to or in the care, custody or control of the insured."

4.

Part II of the policy provides that "As respects such insurance as is afforded by the other terms of this policy under Coverage A the company shall (a) defend in his name and behalf any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent * * *."

As heretofore stated in finding of fact No. 2, the defendant denied that the occurrence was covered by the policy and refused to defend the action brought against the plaintiff by the Insurance Company of North America and Veterans of Foreign Wars of the United States.

5.

Considering the issues, amount of work involved, experience of plaintiff's attorney, result of the litigation, and other factors present in the disposition of this case, the Court is of the opinion that a reasonable attorney's fee for plaintiff is $750.

Discussion.

The parties agree that the question for determination is whether the occurrence...