Schroeder v. Federal Ins. Co.

• Decision Date: 23 January 1962
• Citation: 343 Mass. 472,179 N.E.2d 328
• Parties: George A. SCHROEDER v. FEDERAL INSURANCE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 328

179 N.E.2d 328

343 Mass. 472

George A. SCHROEDER v. FEDERAL INSURANCE COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 10, 1961.

Decided Jan. 23, 1962.

David H. Fulton, Boston, for Federal Ins. Co.

Lyman C. Sprague, Boston, for insured.

Before WILKINS, C. J., and WILLIAMS, WHITTEMORE, CUTTER and SPIEGEL, JJ.

CUTTER, Justice.

The insured, the owner of an airplane, brings this action to recover for its loss in an accident on December 16, 1957. It was stipulated, after the plaintiff's opening, 'that the issue to be determined * * * is whether * * * the pilot, Paul Sriberg [not the insured], had the requisite number of hours of flying time as set forth in the policy.' A jury returned a verdict for the insured. The case is here upon the company's exceptions to the admission of certain evidence, to the trial judge's refusal to revise a 'preliminary finding as to the availability of a [certain] logbook' of Sriberg, and to the judge's refusal to direct a verdict for the company.

The policy covered a Beech Bonanza G-35. Declaration numbered 5 of the policy provided, 'The [a]ircraft will be operated only by the following * * * any currently certificated private pilot or commercial pilot possessing not less than 250 hours total flying time and approved by the insured.' By rider attached to the policy, this was amended to read, 'George A. Schroeder [the insured] and/or any duly certificated private pilot or better licensed by the Civil Aeronautics Administration who has at least 250 hours total flying time 25 hours of which have been in Beech Model 35 aircraft.' The final paragraph of item 3 of the 'General Conditions' of the policy reads in part, 'Claims must be made separately for each section, each accident and each aircraft and must be supported by the exhibit as often as required, and at any reasonable time during the currency of this policy or thereafter, of aircraft or insured property or remains thereof and of logbooks, one each for pilot, airplane and engine, kept in order as required by Federal Regulations * * *.' ¹ Item 15 of the 'General Conditions' defines 'Flight--The period from the start of actual take-off run, while in the air and until completion of landing run.'

Before evidence was offered, Sriberg was examined in the absence of the jury to determine whether the trial judge would admit secondary evidence of the contents of a logbook or logbooks said to have been lost. There was testimony that one logbook 'just disappeared.' Another was 'destroyed by one of * * * [Sriberg's] children' and thereafter thrown away. The judge ruled that 'secondary evidence * * * as to the number of hours' flown by Sriberg prior to the accident might be received. Such evidence was received as to hours flown and 'recorded in this * * * logbook that * * * [Sriberg] lost * * * and the logbook * * * destroyed by his small child.' Thereafter, subject to the company's exception, other evidence was admitted about Sriberg's flying time, through the testimony of Sriberg and of others, without clear indication that it was testimony about Sriberg's flying time as entered in any logbook which was no longer available. Indeed, subject to the company's exception, the judge asked Sriberg, '[A]t the time this accident occurred in December, 1957, how many actual flying hours had you flown?' To this Sriberg replied that 'a minimum of 294 hours is the best I can answer that * * *.' The evidence on the issue was somewhat conflicting.

Secondary evidence clearly was admissible of the contents of those logbooks, which the trial judge had found (by preliminary findings) had been lost or were no longer available. Fauci v. Mulready, 337 Mass. 532, 539-542, 150 N.E.2d 286. We think, however, that the policy did not restrict proof of Sriberg's flying time to that recorded in a logbook. The only reference to logbooks relied upon is that of the final paragraph of item 3 of the 'General Conditions' already quoted. This we interpret merely as requiring (at the request of the insurer) presentation of available logbooks in support of claims. It does not specifically preclude proof of flying time by evidence other than the contents of logbooks. If only this special method of proof of flying time was to be permitted and if production of logbooks showing flying time was to be a condition precedent to any recovery, then an explicit provision to that effect should have been made in the rider or elsewhere in the policy. Any such provision also should have been made expressly applicable to the rider provision limiting operation of the aircraft to pilots with stated hours of flying experience. ² Accordingly, we apply the principle that 'every doubt is to be resolved against the insurer and in favor of the insured.' Lustenberger v. Boston Cas. Co., 300 Mass. 130, 134-135, 14 N.E.2d 148, 150, 115 A.L.R. 1055. See Insurance Co. of North America v. Newtowne Mfg. Co., 187 F.2d 675, 682, 684 (1st Cir.). Cf. Woogmaster v. Liverpool & London & Globe Ins. Co., Ltd., 312 Mass. 479, 481, 45 N.E.2d 394.

There was no prejudicial error in admitting testimony that 'a pilot who has reached a certain level of skill and who is not going to go on, generally does not keep a logbook because he doesn't need to prove his time * * *.' This evidence could reasonably be admitted as giving assistance in the interpretation of the somewhat ambiguous...