Swasey v. Massachusetts Protective Ass'n

• Decision Date: 26 April 1938
• Docket Number: No. 8617.,8617.
• Citation: Swasey v. Massachusetts Protective Ass'n, 96 F.2d 265 (9th Cir. 1938)
• Parties: SWASEY v. MASSACHUSETTS PROTECTIVE ASS'N, Inc.
• Court: U.S. Court of Appeals — Ninth Circuit

96 F.2d 265 (1938)

SWASEY v.MASSACHUSETTS PROTECTIVE ASS'N, Inc.

No. 8617.

Circuit Court of Appeals, Ninth Circuit.

April 26, 1938.

Townsend & Jenckes, of Phoenix, Ariz., and Conroy & Conroy, of Los Angeles, Cal., for appellant.

Rodey & Dickason, of Albuquerque, N. M., and Clark & Clark, of Phoenix, Ariz., for appellee.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a judgment after trial by the court on an agreed statement of facts.

Appellant Swasey's husband was insured for accidental death by appellee, Massachusetts Protective Association, in 1935, under a policy with the premiums paid and in force at the time of the wreck of an aeroplane in which the husband was killed.

Liability was denied on the sole ground that the cause of death was excluded from the policy by the following clause:

"This policy does not cover death or other loss sustained as the result of participation in aviation, aeronautics or subaquatics."

The first question raised is, Is a passenger on a plane to be deemed a participant in aviation or aeronautics?

This clause is an exception to the general coverage against accident.Like all other provisions of a policy drawn by the company, if it have an ambiguity of construction, it must be resolved against the company.Mutual Life Ins. Co. v. Hurni Packing Co., 263 U.S. 167, 174, 44 S.Ct. 90, 68 L. Ed. 235, 31 A.L.R. 102;Kaufman v. New York Life Ins. Co., 9 Cir., 78 F.2d 398, 403.

So far as concerns the phrase "participation in aeronautics,"we have determined the contention here against the insured in the case of Mutual Benefit Health & Accident Ass'n v. Moyer, 9 Cir., 94 F.2d 906.

The exception also is of one participating in "aviation."Obviously, in a broad sense, passengers may be considered as having such a participation in the journey.However, in the 1913 Edition of Standard Dictionary of the English Language, the exact contrary definition of aviation is given.It is, "The art of flying: especially the management of aeroplanes."(Italics supplied.)

The Encyclopedia Brittanica earlier defined it as: "It aerostatics is divided into two main branches: aerostation dealing, properly, with machines, which like balloons, are lighter than air, and aviation dealing with the problem of artificial flight by means of flying machines, which like birds, are heavier than air."

In the 1934 Edition of Webster's New International Dictionary, aviation is defined: "(1) the art or practice of operating heavier-than-air aircraft.(2) An organization, or group of persons, devoted to or engaged in aviation (sense 1)."

Since as early as 1913, we find the fixed concept that aviation had to do with the art and the management of aeroplanes and the problems of flight, and in Webster's Dictionary, in 1934, the same concept, we are entitled to interpret the policy's clause as confined to these active participations in the art and management of the planes and the solution of their problems.

The passenger is not concerned with the "art of flying" or the "management of aeroplanes" or the "problem of artificial flight."

In holding that the deceased's death by the accident is not within the exception, we must again comment, as we have repeatedly,¹ on the practice of using such ambiguous phraseology.Here a tyro at drafting legal documents would know that the exception would clearly convey to the ordinary man that accidents to passengers in...