Sun Life Assur. Co. of Canada v. Kiester

• Decision Date: 05 December 1950
• Docket Number: No. 33309,No. 2,33309,2
• Citation: 62 S.E.2d 660,83 Ga.App. 87
• Parties: SUN LIFE ASSUR. CO. OF CANADA v. KIESTER
• Court: Georgia Court of Appeals

Page 660

62 S.E.2d 660

83 Ga.App. 87

SUN LIFE ASSUR. CO. OF CANADA v. KIESTER.

No. 33309.

Court of Appeals of Georgia, Division No. 2.

Dec. 5, 1950.

Rehearing Denied Dec. 19, 1950.

Syllabus by the Court.

The clause in a life insurance policy, 'This * * * benefit does not extend to or include death resulting from participation, either as a passenger or otherwise, in aviation or aeronautics', being ambiguous, must be construed strictly against the insurance company. So construed, it does not preclude recovery by the beneficiary under the policy where the insured met his death while a mere passenger riding in an airplane, said insured not at the time participating in any way in the control, management or operation of the aircraft.

Mrs. Catherine H. Kiester brought suit in the Civil Court of Fulton County against the Sun Life Assurance Company of Canada, alleging that she was the widow of Charles Ross Kiester and his beneficiary under a policy of insurance issued by the defendant, which policy contained a double indemnity provision for death resulting from bodily injury caused solely by external, violent and accidental means. The double indemnity benefit provision contained an exclusion clause for 'death resulting from participation, either as a passenger or otherwise, in aviation or aeronautics'. The amended petition contains the following allegation: 'That petitioner's husband died as a result of a crash of a Navy plane near Dalton, Georgia. That at the time of his death petitioner's husband was riding as a passenger in the rear compartment of said plane; that he was not a pilot and there were no controls for the aircraft in said compartment; that petitioner's husband had no duties whatsoever to perform in connection with the operation of said aircraft and petitioner's husband was not participating in any way in the control, management or operation of said aircraft at the time of said crash; that at the time of said crash all petitioner's husband was doing was traveling under orders as a passenger in an aeroplane being flown by the United States Navy as a passenger transport between Glenview, Illinois and Atlanta, Ga.; that said aircraft had only one pilot, Lt. Ralph Meeks, USNR, who was the commanding officer of said aircraft, and that there were no crew members. That at the time of his death petitioner's husband was not participating, either as a passenger or otherwise, in aviation or aeronautics, but was merely using, as a passenger, the facilities of an aeroplane as a means of transportation on this particular occasion.'

The petition was attacked by general demurrer as not setting forth a cause of action for the double indemnity benefit sued upon. From the judgment of the trial court overruling the general demurrer the defendant excepts.

M. D. McLendon and Bryan, Carter & Ansley, all of Atlanta, for plaintiff in error.

Lokey & Bowden, Atlanta, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts.)

The construction of the exclusion clause of a life insurance policy 'participating, as a passenger or otherwise, in aviation or aeronautics' is of first impression in this state, although this clause and others almost identical with it have received attention from other courts throughout the country. Two fundamental principles of law of force in this state: first, that policies of insurance, when susceptible of more than one construction, should be most strictly construed against the insurance company, Atlas Assurance Co., Ltd. v. Lies, 70 Ga.App. 162, 27 S.E.2d 791; Johnson v. Mutual Life Insurance Co., 154 Ga. 653(2), 115 S.E. 14, and, second, that contracts of insurance, like other contracts, should be construed in accordance with the intention of the parties, unambiguous provisions thereof to be given their plain and reasonable intendment, Aetna Life Insurance Co. v. Padgett, 49 Ga.App. 666, 176 S.E. 702; Penn Mutual Life Insurance Co. v. Marshall, 49 Ga.App. 287, 175 S.E. 412, are recognized in all the cases we have examined construing this and similar clauses in insurance policies.

Applying these rules of law in connection with the persuasive authority of the decisions construing these or similar words, it is noted that the trend of modern decisions has followed the increase in volume and safety of air travel with the result that courts generally have in recent years been inclined to give a stricter construction to aviation exclusion clauses. The first of these policies used the term 'engaged in aviation or aeronautics', 'engaged in aeronautics operations', or 'engaged in aeronautic expeditions' or 'engaged in aeronautical activity.' The word 'engaged' in such policies has almost uniformly been construed to have an occupational connotation, so that a mere passenger would not be engaged in an aeronautical expedition or anything of the kind. Recovery by the beneficiary under such policies was accordingly allowed in the following cases: Hartol Products Corp. v. Prudential Ins. Co., 290 N.Y. 44, 47 N.E.2d 687; Provident Trust Co. of Philadelphia v. Equitable Life Assurance Soc., 316 Pa. 121, 172 A. 701; National Bank of Commerce v. New York Life Insurance Co., 181 Tenn. 299, 181 S.W.2d 151; Benefit Ass'n Ry. Employees v. Hayden, 175 Ark. 565, 299 S.W. 995, 57 A.L.R. 622; Masonic Accident Ins. Co. v. Jackson, 200 Ind. 472, 164 N.E. 628, 61 A.L.R. 840; Gits v. New York Life Ins. Co., 7 Cir., 32 F.2d 7; King v. Equitable Life Assur. Soc., 232 Iowa 541; 5 N.W.2d 845, 155 A.L.R. 1022; Provident Trust Co. of Philadelphia v. Equitable Life Assur. Soc. of United States, 316 Pa. 121, 172 A. 701; Equitable Life Assur. Soc. v. Dyess, 194 Ark. 1023, 109 S.W.2d 1263; Day v. Equitable Life Assur. Soc. of United States, 10 Cir., 83 F.2d 147; Price v. Prudential Ins. Co., 98 Fla. 1044, 124 So. 817. Some of these cases contained the phrase 'as a passenger or otherwise' in the body of the exclusion clause of the insurance policy; others did not. Recovery under similar clauses was denied in Masonic Acc. Ins. Co. v. Jackson, Ind.App., 147 N.E. 156, Ivy v. New York Life Ins. Co., D.C., 33 F.Supp. 841 and National Exchange Bank & Trust Co. of Steubenville v. New York Life Ins. Co., D.C., 19 F.Supp. 790, 791. The latter case involved one policy containing the words 'engaging in aeronautic operations' and four policies with the words 'participation * * * in aviation or...