Travelers' Ins. Co. v. Peake

• Decision Date: 13 July 1921
• Citation: 89 So. 418,82 Fla. 128
• Court: Florida Supreme Court
• Parties: TRAVELERS' INS. CO. v. PEAKE.

89 So. 418

82 Fla. 128

TRAVELERS' INS. CO. v. PEAKE.

Florida Supreme Court

July 13, 1921

Error to Court of Record, Escambia County; C. Moreno Jones, Judge.

Action by Edward W. Peake against the Travelers' Insurance Company. Judgment for plaintiff, and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Courts cannot enforce indemnity for losses from injuries resulting from risks excepted in the policy. Policies of insurance are designed to secure indemnity to the insured for losses or injuries stated in the policy, and the terms used should be so construed as to effectuate the purpose designed, ambiguous provisions being fairly construed in favor of the insured but parties sui juris are bound by their valid contracts, and where a particular risk is expressly and clearly excepted from the risks assumed by the insurer, the courts have no power to enforce indemnity for losses or injuries resulting from such excepted risks as expressed by the indemnity contract contained in the policy.

Airplane flying, whether insured operates the machine or not, is 'participating in aeronautics' within as accident policy exception. A passenger in an airplane flying in the air, whether he takes part in the operation of the airplane or not, is 'participating in aeronautics' within the intent and meaning of the provision specifically excepting such a risk from the indemnity contract contained in the policy herein.

COUNSEL

Blount & Blount & Carter, of Pensacola, for plaintiff in error.

OPINION

WHITFIELD J.

Judgment for the plaintiff was rendered on a demurrer to a declaration on an insurance policy, and defendant took writ of error.

The policy made a part of the declaration insured the plaintiff 'against loss resulting from bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means * * * as specified in the following schedule, subject to the provisions and limitations hereinafter contained. * * * The insurance hereunder shall not cover injuries fatal or nonfatal * * * sustained by the insured while participating in or in consequence of having participated in aeronautics.'

The declaration alleges:

'That on the 31st day of August, A. D. 1919, at a time while the said policy was in full force and effect, the plaintiff was severely injured in the manner following, to wit: The plaintiff being then and there in the city of Montgomery state of Alabama, as a visitor to the State Fair being then held in the said city of Montgomery, that at the fair grounds, one Richard Johnson maintained and operated for hire an airplane in which the said Richard Johnson carried passengers for various short trips in the air. That the plaintiff while at the said fair took passage for one trip in said airplane, which said airplane was then and there under the direction and control of the said Richard Johnson. That the plaintiff had no control over the said airplane, and had no management or operation thereof, but that as passenger, aforesaid, he entered into the

...