Scarboro v. Pilot Life Ins. Co.

• Citation: 242 N.C. 444,88 S.E.2d 133,54 A.L.R. 2d 407
• Decision Date: 30 June 1955
• Docket Number: No. 671,671
• Court: United States State Supreme Court of North Carolina
• Parties: , 54 A.L.R.2d 407 Elizabeth McLean SCARBORO v. PILOT LIFE INSURANCE COMPANY.

Page 133

88 S.E.2d 133

242 N.C. 444, 54 A.L.R.2d 407

Elizabeth McLean SCARBORO v. PILOT LIFE INSURANCE COMPANY.

No. 671

Supreme Court of North Carolina.

June 30, 1955

Charles G.McLean and McLean & Stacy for plaintiff, appellant.

Varser, McIntyre & henry, Lumberton, and Wharton & Wharton, Greensboro, for defendant, appellee.

PARKER, Justice.

Plaintiff's sole assignment of error is to the signing of the judgment. This presents one question for decision: whether the facts found by the Judge are sufficient to support the judgment. James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759; Glace v. Pilot Throwing Co., 239 N.C. 668, 80 S.E.2d 759; Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609.

There is neither finding of fact nor evidence, that the glider was 'operated for any aviation training.' or that it was 'maintained or operated for military or naval purposes. ' Therefore, paragraphs (b) and (c) of the Aviation Exclusion Rider have no application to the facts found.

This leaves for our consideration this part of the Rider:

'Aviation Exclusion Rider

'Death of the Insured as a result of travel or flight in or descent from or with any kind of aircraft is a risk not assumed under this policy. (a) If the Insured is a pilot, officer, or other member of the crew of such aircraft, is giving or receiving any kind of training or instruction, or has any duties whatsoever aboard such aircraft while in flight.'

There is no evidence or finding of fact that George Howard Scarboro 'was giving or receiving any kind of training or instruction. ' As plaintiff states in her brief 'George Howard Scarboro was flying alone for his own purposes, nmmely for pleasure. ' The Judge found as a fact that he was operating a single-seated aircraft, known as a glider, when it fell to earth, and in its fall he was fatally injured.

Plaintiff contends that the word 'crew' used in the Rider means 'the company of airmen who man an aircraft'; that the words 'or other member of the crew' refer back to and limit the words 'pilot, officer,' and incorporates them into the general category, which follows, namely, 'other members of the crew'; and that the language used means pilot, officer, of a crew of airmen. Plaintiff further contends that, considering the words of the Rider as a whole, the words 'any kind of aircraft' refer to mechanical species of aircraft, and do not cover a single-seated glider as here; and that the words 'such aircraft' refer to that species of aircraft. Plaintiff further contends that George Howard Scarboro was not a pilot of a crew, had no duties whatsoever aboard the glider while in flight, and that she is not excluded from recovering the face value of the policy by any provision of the Rider.

Attached to this policy and made a part thereof is a double indemnity provision for death through external, violent and accidental means, but 'the agreement as to benefits under this provision shall be null and void if death occurs * * * (b) as the result of travel or flight in or descent from any species of aircraft if (I) the insured is a pilot, officer or other member of the crew of such aircraft, is giving or receiving any kind of training or instruction, or has any duties whatsoever aboard such aircraft while in flight, * * *, or (III) the aircraft is operated other than by a duly licensed or certified pilot in the course of his regular employment in the transport of passengers for wages or salary * * *. ' It is to be noted that plaintiff in her complaint did not seek to recover on the double indemnity provision of the policy.

It is clear that the usual, ordinary and commonly accepted meaning of the word 'glider' is that it is a form of aircraft. It is so defined in Webster's New International Dictionary, 2nd Ed.: 'Aeronautics. A form of aircraft similar to an airplane, but, without any engine.' 2 C.J.S., Aerial Navigation, § 2, in Pocket Parts, gives the same definition. In Spychala v. Metropolitan Life Ins. Co., 339 Pa. 237, 13 A.2d 32, 34, the Court said: 'It thus appears that a glider is a type of airplane which is not equipped with a motor * * *.'

It is equally clear that George howard Scarboro was pilot of this glider when it fell. In Wilmington Trust Co. v. Mutual Life Ins. Co., 3 Cir., 177 F.2d 404, 405, the Court said: 'A few months later while on a test flight in California in a glider piloted by a Colonel Gabel, duPont was forced to bail out and was killed when his parachute failed to open. ' Webster's New International Dictionary 2d Ed. defines the word 'pilot': 'Aeronautics. One who flies, or is qualified to fly, a balloon, an airship, or an airplane.' See also 29 Am.Jur., Insurance, Sec. 968; Irwin v. Prudential Ins. Co. of America, D.C., 5 F. Supp. 382; (1934) U.S.Aviation Rep. 77.

In our opinion, the language of the Aviation Exclusion Rider is clear that the word 'aircraft' therein used includes a single-seated glider, and there is no ambiguity in that respect.

In Provident Life & Accident Ins. Co. v. Anderson, 4 Cir., 166 F.2d 492, 496, the Court said: 'Limitations as to war risks and aviation risks are often placed in the same section or clause of an insurance policy and the courts have been inclined to construe each type of limitation as if it were a separate and distinct provision. The mere circumstance that all the exclusions are placed in one sentence is not vital as long as no ambiguity is thereby created.'

In this Rider this risk is not assumed: '(a) If the insured * * * has any duties whatsoever aboard such aircraft while in...