Tuohey v. National Ins. Underwriters

• Decision Date: 03 June 1963
• Docket Number: No. 23682,23682
• Parties: John Michael TUOHEY, Deceased, By Perrin D. McElroy, Administrator of His Estate, Plaintiff-Respondent, v. NATIONAL INSURANCE UNDERWRITERS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 421

369 S.W.2d 421

John Michael TUOHEY, Deceased, By Perrin D. McElroy, Administrator of His Estate, Plaintiff-Respondent, v. NATIONAL INSURANCE UNDERWRITERS, Defendant-Appellant.

No. 23682.

Kansas City Court of Appeals,

Missouri.

June 3, 1963.

Rodger J. Walsh, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for appellant.

Winn Thurman, Thurman, Thurman & Lafferty, Kansas City, for respondent.

BROADDUS, Presiding Judge.

This is an action based upon an insurance policy covering the loss of an airplane. Plaintiff had a verdict and judgment. Defendant appealed.

The deceased was the named insured under a Combination Aircraft Policy issued by the defendant-appellant, the National Insurance Underwriters, a reciprocal insurance exchange.

The policy insured an aircraft, a Piper Tri-Pacer, C.A.A. No. N2745-P, Model PA-22 which was built in 1955.

The aircraft was flown by deceased from Chicago to St. Louis, Missouri and then enroute to Kansas City, Missouri, it crashed near Chillicothe, Missouri, on March 31, 1957, and was destroyed. The deceased was killed with his wife in the crash.

Among the risks covered by the policy was "Coverage F--All Risks while in flight--to pay for all physical loss of or damage to the aircraft while in flight * * *" which provided the limit of liability to be $5,500 less $150 deductible. The policy also contained the following exclusion:

"Exclusion ... This policy does not apply ...

(a) Under Coverages A, B, C and H to any insured who operates or permits the aircraft to be operated, or under Coverages D, F and G, to loss while the aircraft is in flight by or with the permission of the Insured during or as a result of its operation: ..............

(3) under Instrument Flight Rule(s) (IFR) conditions unless the pilot possesses a valid Instrument Rating and is proceeding in accordance with Instrument Flight Rules: * * *"

The policy contained the following definition:

".... (J) Instrument Flight Rule(s) (IFR). The term 'Instrument Flight Rule(s) (IFR)' whenever used in this policy shall mean those rules governing Instrument Flight as established by the duly constituted agency(s) of the Federal Government having jurisdiction over Civil Aviation ..."

The Instrument Flight Rules, Title 14, Code of Federal Regulations, Sections 60.30 to 60.41, are as follows:

"Aircraft shall comply with the following requirements as to ceiling and distance from clouds:

"(a) Within Control Zones. Unless authorized by air traffic control, aircraft shall not be flown when the ceiling is less than 1,000 feet, or less than 500 feet vertically and 2,000 feet horizontally from any cloud formation.

"(b) Elsewhere. When at an altitude of more than 700 feet above the surface aircraft shall not be flown less than 500 feet vertically and 2,000 feet horizontally from any cloud formation; when at an altitude of 700 feet or less aircraft shall not be flown unless clear of clouds.

"Visibility--

"(a) Ground Visibility Within Control Zones. When the ground visibility is less than three miles, no person shall take off or land an aircraft at an airport within a control zone, or enter the traffic pattern of such airport, unless an air traffic clearance is obtained from air traffic control:

"(b) Flight Visibility Within Control Zones. When the flight visibility is less than three miles, no person shall operate an aircraft in flight within a control zone, unless an air traffic clearance is obtained from air traffic control:

"(c) Flight Visibility Within Control Areas. When flight visibility is less than three miles, no person shall operate an aircraft within a control area.

"(d) Flight Visibility Elsewhere. When outside of control zones and control areas, no person shall operate an aircraft in flight when the flight visibility is less than one mile.

"When aircraft are not flown in accordance with the distance-from-cloud and visibility rules prescribed in the visual flight rules, aircraft shall be flown in accordance with the instrument flight rules which requires that prior to take-off from a point within a control zone or prior to entering a control area or control zone, a flight plan shall be filed with air traffic control."

The deceased had no instrument rating at the time of the crash and did not file a flight plan before leaving St. Louis. He left St. Louis about 9:50 P.M. and his estimated time to arrive in Kansas City would be midnight.

Jack Jones, a pilot for 25 years and 15,000 hours of flying experience, was called by plaintiff as his witness. He identified defendant's Exhibit 1, the weather report, for the evening of the crash together with the flash advisory "that is put out when the weather gets into extreme conditions, * * for pilots to anticipate this bad condition." The weather report meant that Kansas City was below the minimum of Visual Flight Rules, a thousand feet ceiling and three miles visibility. He read pages 17 through 21 of defendant's Exhibit No. 2 which were the weather reports. The time on the reports is Eastern Standard time. At Lamoni, Iowa, north-northeast of Kansas City about 100 miles, the weather at 9:28 P.M. CST was two miles visibility and fog and about the same at 10:28 P.M. CST; at Kirksville at 9:28 P.M. CST it was four miles visibility and fog and lowering some; at Butler, Missouri, at the same time it was one mile visibility and sky obscured; at St. Joseph, Missouri, at the same time there was a seven hundred to six hundred foot ceiling, lowering, and visibility two and one-half miles with rain and fog; at Kansas City from 9:28 P.M. CST through midnight the ceiling was 600 feet, sky obscurement; rain and fog; at Vichy, Missouri, at the same time the ceiling went from 800 to 5500 feet and the visibility was 15 miles. Vichy is about 175 miles southeast of Kansas City. Jones testified that it was instrument flight rule conditions at Lamoni, Iowa; St. Joseph, Kansas City, and Butler, Missouri, from 9:28 CST to midnight on the night of the crash. Columbia was not instrument weather. It was his opinion that the chances of it being instrument flight conditions at Chillicothe at the time the deceased crashed were real good.

Mr. Jones testified that the Chillicothe Airport is in a control area and not in a control zone. The air space from the ground up to 700 feet is not considered within the control area. One may fly under Visual Flight Rules as long as he stays under 700 feet altitude, clear of clouds and has a mile visibility. The rules applying to this type of flight are different from those restrictions one finds when he enters a controlled field (controlled zone) like the Municipal Airport in Kansas City.

Austin C. Vincent, a lawyer and private pilot, called by the plaintiff, learned in his inquiry that the deceased was advised by the St. Louis radio of the flash weather advisory and that it would be unwise for the deceased to take off and start the trip. It was his opinion, based upon the same weather reports and his investigation of the crash, that it was instrument weather over the whole state of Missouri that evening. The pilot was advised that the St. Louis radar showed thunderstorms west of St. Louis that night. At night you cannot see the weather coming as you can in the daytime. It was his opinion that it was instrument flying conditions at the time the deceased crashed near Chillicothe and also at Lamoni, St. Joseph, Kansas City and Butler, Missouri.

Robert Beebe, a consulting meteorologist, proprietor of Midwest Weather Service, who has done graduate work in meteorology and taught at the University of Chicago, and was an aviation forecaster for the United States Weather Bureau and has spent the last twenty-five years in forecasting and observation of the weather testified that he examined defendant's Exhibits 1 and 2, the weather reports, and it was his opinion that it was instrument flight conditions at Kansas City, St. Joseph, Lamoni and Butler, Missouri, on the evening of the crash at 9:30 P.M. CST until midnight. The weather was moving from west to east. Flash...