Southland Life Ins. Co. v. Trahan

• Decision Date: 02 November 1955
• Docket Number: No. 12946,12946
• Citation: 284 S.W.2d 207
• Parties: SOUTHLAND LIFE INSURANCE COMPANY, Appellant, v. Lola J. TRAHAN, Appellee.
• Court: Texas Court of Appeals

Page 207

284 S.W.2d 207

SOUTHLAND LIFE INSURANCE COMPANY, Appellant, v. Lola J. TRAHAN, Appellee.

No. 12946.

Court of Civil Appeals of Texas, San Antonio.

Nov. 2, 1955.

Rehearing Denied Nov. 23, 1955.

Brewer, Matthews, Nowlin & Macfarlane, San Antonio, R. L. Dillard, Jr., Curtis White, Dallas, for appellant.

Hoyo, Shelton & Height, San Antonio, for appellee.

POPE, Justice.

This is a suit upon a life insurance policy. Whether the policy provisions covered or excluded the risk of death while the insured was flying in a military plane and whether the insurer is estopped to claim that aviation risks were excluded are the legal questions presented. The jury answered all issues in favor of the plaintiff, who is the widow of deceased. The court, however, gave judgment in her favor, not grounded upon the jury verdict, but as a matter of law, based on an interpretation of the insurance policy.

Claude Trahan, the insured, in 1953 was a Sergeant on flying status at Randolph Air Force Base. He made application for an insurance policy, but before issuance Tom Pair, as soliciting agent for appellant, convinced insured that Southland Life Insurance Company could offer a better policy than the company with which the insured was dealing. The insured explicitly stated that he would not be interested in any policy which excluded flying coverage. Insured relied on Pair's representations and made application for a policy with Southland. When Pair delivered the policy the insured read it and refused to accept it, because it contained two aviation riders. One was known as the War and Aviation Risk Rider and the other was known as Partial Exclusion of Aviation Risk. Twenty-four days later, Pair returned with a policy, handed it to insured and showed him a separate slip of paper which stated that the War and Aviation Risk Rider had been removed. This was a true statement, but the other rider had not been removed. Insured did not again inspect the policy. Relying upon the printed slip and the agent's statement that the policy 'takes care of the flying coverage,' he accepted the policy. A few months later the insured died as a result of a fall from an airplane while making a military flight, 20,000 feet over the Gulf of Mexico. He was a member of the crew and was on training flight. The insurer refused to pay the death benefits because the insured suffered death by reason of the flight, which was a risk excluded by the rider known as Partial Exclusion of Aviation Risk.

The trial court, in sustaining the plaintiff's motion for judgment, held that the Partial Exclusion of Aviation Risk, which was not taken from the policy, was intended to exclude risks incurred by civilian aviation only, and that death suffered in military aviation was not excluded. To reach that conclusion, inferences from matters outside the policy itself were necessary. The War and Aviation Risk Rider, which was taken off the policy, excluded several kinds of war risks in addition to military flying. It excluded death as a result of an act of war, declared or undeclared, if the act of war occurred outside the United States or Canada. It excluded coverage for death within two years if death resulted from an act of war, and if the death occurred outside the United States or Canada while the insured was a civilian noncombatant occupying certain described hazardous areas. It also excluded coverage which:

'3. Occurs inside or outside the Home Area whether or not the Insured is in war service and as a result of operating or riding in or descending from any kind of aircraft if the Insured is pilot, officer or member of the crew of such aircraft or is giving or receiving any kind of training or instructions or has any duties aboard such aircraft or requiring descent therefrom.'

Though that rider was taken off the policy, the other rider remained and was attached to the delivered policy. The rider was a separate sheet attached to the policy bearing the descriptive words in bold type, 'Partial Exclusion of Aviation Risk.' The rider was pasted to the policy and extended more than half way down the second page. It was visible to a casual inspection. Stamped in red on the policy were the words: 'See Aviation Rider.' It provided:

'If at any time, the insured is a pilot, officer, or member of the crew of any aircraft, or is operating or assisting in the operation of any aircraft, or is giving or receiving any kind of training or instruction or has any duties whatsoever with respect to any aircraft while aboard it during travel or flight, and if the death of the insured results directly or indirectly from travel or flight in, or descent from or with such aircraft, the company's liability under this policy shall be limited to a total amount of premiums paid on the policy, without interest * * *.'

The trial court's distinction between military and civilian flights in an aviation exclusion rider has been urged in some cases outside of Texas. The point has never been presented in Texas. The cases believed to support the distinction have been disapproved or distinguished by the majority of the courts on sound reasoning. Those cases do not hold that the deaths occurred by reason of airplane flights, but by reason of gun-shot, acts of third persons, or other positively excluded risks, and are therefore not in point. Boye v. United Services Life Ins. Co., 83 U.S.App.D.C. 306, 168 F.2d 570; Temmey v. Phoenix Mut. Life Ins. Co. of Hartford, 72 S.D. 387, 34 N.W.2d 833; Bull v. Sun Life Assur. Co., 7 Cir., 141 F.2d 456, 155 A.L.R. 1014; Riche v. Metropolitan Life Ins. Co., 193 Misc. 557, 84 N.Y.S.2d 832. A few other cases make a valid distinction between civilian and military flights because the language of the policy supports such a distinction. Schifter v. Commercial Travelers Mut. Acc. Ass'n of America, 183 App.Div. 74, 50 N.Y.S.2d 376; Paradies v. Travelers Ins. Co., 183 Misc. 887, 52 N.Y.S.2d 290; Conaway v. Life Ins. Co. of Virginia, 148 Ohio St. 598, 76 N.W.2d 284.

The majority view, which we shall follow, is expressed in Mutual Life Ins. Co. of New York v. Daniels, 125 Colo. 451, 244 P.2d 1064, 1068, by these words:

'Nor does the fact that the policy did not have a war-risk clause give support to any implication that military flights were not excluded. The courts in the following cases have directly considered whether the lack of a war-risk clause renders the aviation clause in an insurance policy ambiguous and all have ruled that it does not: Wilmington Trust Co. v. Mutual Life Ins. Co. of N. Y., 3 Cir., 1949, 177 F.2d 404, certiorari denied 339 U.S. 931, 70 S.Ct. 665, 94 L.Ed. 1351; Green v. Mutual Benefit Life Ins. Co., 1 Cir., 1944, 144 F.2d 55; Hyfer v. Metropolitan Life Ins. Co., 1945, 318 Mass. 175, 61 N.E.2d 3; Thoma v. New York Life Ins. Co., Pa., 1946, 30 Northam.Law Rep. 369; Knouse v. Equitable Life Ins. Co. of Iowa, 1947, 163 Kan. 213, 181 P.2d 310; McKanna v. Continental Assurance Co., 1948, 165 Kan. 289, 194 P.2d 515, 517; Durland v. New York Life Ins. Co., 1946, 186 Misc. 580, 61 N.Y.S.2d 700; and Burns v. Mutual Benefit Life Ins. Co. of Newark, D.C., 1948, 79 F.Supp. 847, affirmed without opinion, 6 Cir., 179 F.2d 236. ...