Sneddon v. Mass. Protective Ass'n Inc.

• Decision Date: 10 January 1935
• Docket Number: No. 3976.,3976.
• Citation: 39 P.2d 1023,39 N.M. 74
• Parties: SNEDDONv.MASSACHUSETTS PROTECTIVE ASS'N, Inc.
• Court: New Mexico Supreme Court

39 N.M. 74

39 P.2d 1023

SNEDDON

v.MASSACHUSETTS PROTECTIVE ASS'N, Inc.

No. 3976.

Supreme Court of New Mexico.

Jan. 10, 1935.

Appeal from District Court, McKinley County; Otero, Judge.

Action by Rena M. Sneddon against the Massachusetts Protective Association, Inc. Judgment for plaintiff, and defendant appeals.

Reversed, and cause remanded, with directions.

Provision of accident policy excepting “death or other loss due to disease, whether acquired accidentally or otherwise, or sustained as result of participation in aviation,” held not to limit exception to death from disease.

Pearce O. Rodey, Joseph L. Dailey, and Don L. Dickason, all of Albuquerque, for appellant.

Herbert C. Denny and Henry S. Glascock, both of Gallup, for appellee.

HUDSPETH, Justice.

This is an action on an accident insurance policy. A jury was waived, judgment was for plaintiff, and defendant has appealed. The legal question presented is whether the insured met his death under circumstances excepted under the terms of the policy. Paragraph G of the policy sued upon reads as follows: “G. This policy does not cover death or other loss due to disease, whether acquired accidentally or otherwise, or sustained as the result of participation in aviation, aeronautics or subacquatics, or while engaged in rioting, fighting, or strikes; or death caused by surgical treatment except such as may result from surgical operation made necessary solely by injury covered by this policy and performed within ninety days of the date of the accident.”

The material facts are stated in paragraph 5 of the amended complaint as follows: “That on the 27th day of November, 1932, and while said insurance policy was in full force and effect, and while the parties thereto were bound by all of the terms and conditions of said policy, the said James Sneddon met his death due to bodily injuries effected directly and independently of all other causes by accidental means and not as the result of self destruction or any attempt thereat; that said death was caused by wounds and injuries incurred and suffered by the said James Sneddon in an airplane crash on the said 27th day of November, 1932, in which an airplane owned by one Wood and one Irick, and then and there as plaintiff is informed and verily believes, driven, operated and controlled by said Irick, did accidentally fall and/or crash upon the street within the Town of Gallup, County of McKinley and State of New Mexico; that said James Sneddon was a casual invited passenger in said airplane. ***”

[1] Appellee contends that the judgment should be sustained because the excepted clause above quoted does not relieve the insurer-appellant for two reasons: First, a casual invited passenger in an airplane is not participating in aviation or aeronautics; second, the exception clause applies only to death due to disease. Appellee maintains that there is no real distinction between the term “engaged in aviation” and “participating in aviation,” and cites cases annotated in 69 A. L. R. 331. The weight of authority is against appellee's contention. See Head v. New York Life Insurance Co. (C. C. A.) 43 F.(2d) 517, where Judge Orie L. Phillips reviews the authorities; also First National Bank of Chattanooga v. Phœnix Mutual Life Insurance Co. (C. C. A.) 62 F.(2d) 681. In Peters v. Prudential Insurance Co., 133 Misc. 780, 233 N. Y. S. 500, 502, the court, in distinguishing between the use of the words “engage” and “participate,” said: “If it was intended to except...