Smith v. Metropolitan Life Ins. Co., A--80

• Decision Date: 08 February 1954
• Docket Number: No. A--80,A--80
• Citation: 29 N.J.Super. 478,102 A.2d 797
• Parties: SMITH v. METROPOLITAN LIFE INS. CO. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 478

29 N.J.Super. 478

102 A.2d 797

SMITH v. METROPOLITAN LIFE INS. CO.

No. A--80.

Superior Court of New Jersey.

Appellate Division.

Argued Jan. 25, 1954.

Decided Feb. 8, 1954.

Alfred W. Kiefer, Hackensack, argued the cause for the plaintiff-appellant.

Nicholas Conover English, Newark, argued the cause for the defendant-respondent (McCarter, English & Studer, Newark, attorneys).

Before Judges EASTWOOD, JAYNE and FRANCIS.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

The substantial question here is whether the plaintiff-appellant Lucille A. Smith, beneficiary under two policies of insurance issued to plaintiff's husband, John F. Smith, by the defendant-respondent Metropolitan Life Insurance Company (hereinafter referred to as the 'insurance company'), is precluded from recovery of the sums specified therein by virtue of the exclusionary 'Aviation Provisions' of the policies.

On motion of the insurance company at the end of the plaintiff's case, the Law Division directed the entry of a judgment on the first count of the complaint in favor of the plaintiff for $25.12, representing the reserve on policy No. 18679063--A, and of no cause of action on the second and third counts thereof. The plaintiff appealed from the ensuing judgment.

The facts are undisputed and may be concisely stated as follows: On July 16, 1951, the day of the insured's death, he rented a Piper Cub seaplane, equipped with two seats and dual controls, from Mellor-Howard Seaplane Base and Flying School, Ridgefield Park, New Jersey. The insured a licensed pilot, accompanied by his brother-in-law--not a licensed pilot--purposed flying the plane to Fire Island, New York, to do some swimming. When the plane left its base, it is conceded that the insured piloted it. Later the same day, the plane was found upside down in the ocean some 200 yards from Fire Island beach in the neighborhood of a boiler from a prior steamship or boat wreck. When extricated from the plane, the two men were strapped to the seats of the plane and upon examination were found to be dead. The medical cause of death was stated as acute asphyxia due to drowning. At the time the weather was foggy, the insured's plane had been seen flying over the beach heading out toward the ocean; shortly thereafter 'an explosion similar to a shotgun explosion was heard' and the wreckage of the plane was seen in the ocean.

In the first count of the plaintiff's complaint, she sought recovery of the death benefit of $5,000 under life insurance policy No. 18679063--A; under the second count she sought recovery of double indemnity under the accidental means death benefit provision of the same policy; and under the third count she sought recovery under the terms of accident policy No. 2020313--AH.

The pertinent language of the exclusionary clause in the life insurance policy reads: '* * * the following are risks not assumed under this policy: death as the result of travel or flight in any species of aircraft if the insured has any duties relating to such aircraft or flight, * * *.' If that clause applies, then the recovery thereon is limited to defendant's reserve on the policy which was stipulated to be $25.12.

Under the 'Accidental Means Death Benefit' of the life insurance policy, the insured was entitled to an additional sum of $5,000 in the event of death as the result of accidental means, provided 'that such death shall not have occurred * * * (d) as the result of travel or flight on any species of aircraft if the insured has any duties relating to such aircraft or flight, * * *.'

The exclusionary clause in the accident policy provided:

'Risks Excluded

'This policy shall not cover, and no payment of any kind shall be made hereunder for, any of the results enumerated and defined in Benefit Provisions 1 to 4, inclusive, which are caused or contributed to by

'(c) travel or flight on any species of aircraft if the insured has any duties relating to such aircraft or flight, * * *.'

Incidentally, on the face of the insurance policy, printed in red ink, is the legend: 'Read your policy carefully. Certain aviation risks are not assumed. In case of any doubt write your company for further explanation.'

While the appellant advances several grounds for the reversal of the judgment, the basic contentions are that the exclusionary aviation clauses are ambiguous, vague and equivocal; that the word 'duties' as used in defendant's policies cannot include insured's status at the time of his death, and that there was a factual issue which should have been submitted to the jury.

The function of the court is not to make contracts, but to enforce them and to give effect to the intention of the parties. Corn Exchange National Bank & Trust Co. of Philadelphia v. Taubel, 113 N.J.L. 605, 608, 175 A. 55 (E. & A. 1934); Basic Iron Ore Co. v. Dahlke, 103 N.J.L. 635, 638, 137 A. 423 (E. & A.1927); Verhagen v. Platt, 1 N.J. 85, 88, 61 A.2d 892, 4 A.L.R.2d 1309 (1948). Words in an insurance policy will be given their ordinary and usual meaning, and if there is no ambiguity, a strained or distorted construction will not be applied. Jorgenson v. Metropolitan Life Ins. Co., 136 N.J.L. 148, 55 A.2d 2 (Sup.Ct.1947). Where in written instruments the words or other manifestations of intent bear more than one reasonable meaning, they are interpreted more strongly against the party from whom they originated, unless their use by him is prescribed by law. Vailsburg Motor Corp. v. Fidelity & Casualty Co., 110 N.J.L. 209, 164 A. 408 (E. & A.1933); Rockmiss v. New Jersey Mfrs. Ass'n Fire Ins. Co., 112 N.J.L. 136, 169 A. 663 (E. & A.1934); Clott v. Prudential Ins. Co. of America, 114 N.J.L. 18, 175 A. 203 (Sup.Ct.1934); affirmed 115 N.J.L. 114, 178 A. 747 (E. & A.1935); Moscowitz v. Middlesex Borough Bldg. & Loan Ass'n, 14 N.J.Super. 515, 82 A.2d 228 (Law Div.1951); Schneider v. New Amsterdam Casualty Co., 22 N.J.Super. 238, 92 A.2d 66 (App.Div.1952). No occasion arises for the application of the canons of construction where the language employed to express the common intention is clear and unambiguous. The rule adopted in the construction of other contracts is applicable in interpreting the language of the provisions of an insurance policy. Kindervater v. Motorists Casualty Ins. Co., 120 N.J.L. 373, 199 A. 606 (E. & A.1938). Cf. Serafino v. United States Fidelity & Guaranty Co., 122 N.J.L. 294, 4 A.2d 850 (Sup.Ct.1939); Cronan v. Travelers Indemnity Co., 126 N.J.L. 56, 18 A.2d 13 (E. & A.1941); James v. Federal Insurance Co., 5 N.J. 21, 73 A.2d 720, 721 (1950). As stated by Chief Justice Vanderbilt in James v. Federal Insurance Co., supra:

'* * * Whatever may be the rules of construction when a policy of insurance is ambiguous, it has long been the law in this State that when the contract is clear the court is bound to enforce the contract as it finds it. * * *'

Cf. Bew v. Travelers' Insurance Co., 95 N.J.L. 533, 112 A. 859, 14 A.L.R. 983 (E. & A.1921); Steiker v. Philadelphia Nat. Ins. Co., 7 N.J. 159, 81 A.2d 10 (1951).

'In the absence of restraining statutory provisions, such insurers have the right to limit their liability; and the judicial function of exposition is not to be extended to the imposition of terms not within the plain sense and meaning of the language employed to express the common intention.' Gusaeff v. John Hancock Mutual Life Ins. Co., 118 N.J.L. 364, 192 A. 528, 530 (Sup.Ct.1937).

The plane was being operated by the insured when it left its base, and when the...