Underwriters at Lloyds, London v. Cherokee Lab., Inc., 6485.

• Decision Date: 20 April 1961
• Docket Number: No. 6485.,6485.
• Citation: 288 F.2d 95
• Parties: UNDERWRITERS AT LLOYDS, LONDON, Appellant, v. CHEROKEE LABORATORIES, INC., Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

288 F.2d 95 (1961)

UNDERWRITERS AT LLOYDS, LONDON, Appellant, v. CHEROKEE LABORATORIES, INC., Appellee.

No. 6485.

United States Court of Appeals Tenth Circuit.

March 14, 1961.

Rehearing Denied April 20, 1961.

Bryan W. Tabor, Tulsa, Okl. (Peter J. McBreen, Chicago, Ill., Rucker, Tabor, Best, Sharp & Shepherd, Joseph A. Sharp, and O. H. "Pat" O'Neal, Jr., Tulsa, Okl., were with him on the brief), for appellant.

Remington Rogers, Tulsa, Okl. (Rogers, Litchfield & Rogers and E. P. Litchfield, Jr., and Robert D. Hudson, Tulsa, Okl., were with him on the brief), for appellee.

Before HUXMAN, PICKETT and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

This suit comes to us from the Northern District of Oklahoma after a trial in which the District Court directed a verdict in favor of plaintiff-appellee allowing recovery of the sum of $89,400 for physical loss occasioned to an airplane insured by defendant-appellant. Claim is made that the trial court erred in determining that plaintiff established a prima facie case of coverage and further erred in holding that defendant did not establish a factual issue determinative of the applicability of an exclusion clause contained in the policy. Both contentions require a consideration of the proof made and applied to the policy provisions, and particularly an understanding of the quality and quantity of proof made relative to the identity of the pilot operating the aircraft at the time of loss.

On February 18, 1959, the defendant insurance company issued to plaintiff a policy of Aircraft Hull insurance which contained the presently pertinent provisions set forth below.¹ On July 2, 1959, the subject aircraft took off from Tulsa, Oklahoma, headed for Columbus, Indiana. En route it crashed near Republic, Missouri, totally demolishing the plane and killing all aboard except a young boy who has no memory of the flight. Included among those killed were David A. Garrick and William G. Wood, Garrick being a pilot admittedly qualified as named in the policy and Wood being a pilot of considerable experience but having less than the number of flying hours designated in the policy. It is admitted that coverage was afforded if Garrick was piloting the plane at the time of the crash and that coverage did not exist if Wood was the pilot at such time. After the crash, Wood was found strapped into the left front seat of the aircraft and Garrick was strapped into the center front seat. Significance to these facts is claimed by reason of the design of the aircraft and the location and function of its controls.

The subject aircraft was a Beechcraft E-50, a two motor plane commonly referred to as a Beech Twin Bonanza. The craft is intended for operation by a single pilot and does not have dual controls except for foot pedals controlling the rudder. The plane is designed, however, so that it may be flown from either the left or right center seat. Permanent and fixed operative controls are so located as to be convenient to either seat. An exception lies in the fuel selector valves which, though possible to reach from the center front seat, are located to the left of the left front seat. The principal operating control, the wheel or stick controlling the ailerons and elevators, is of the throw-over type and may be rotated so as to be cradled by a pilot sitting in either the left or center front seat. When this control is positioned it is secured by a spring pin placed in a slot. The position of the control can be easily changed by a two-finger pull on the pin, a rotation of the wheel, and a release of the pin into the desired slot. After the crash this control was in position for use from the left front seat and was secured in place by the spring pin.

Witnesses also testified that the airplane, after giving several loud pops, stalled and went into a spin without recovery; that the main fuel tanks contained no appreciable amount of gasoline; that the auxiliary tanks contained fuel; that the fuel selector valves, located as earlier indicated to the left of the left front seat, showed the left engine on the main fuel tank and the right engine off; that the right propellor was feathered, an automatic function of the craft under certain conditions; and that the plane was equipped and capable of being flown with an automatic pilot, a device allowing the pilot to be relieved under routine flying conditions but subject to being overwhelmed by manual control if necessary or desirable. Experts testified that the left front seat is the customary pilot's seat; that student pilots take instruction from the left front; and that traffic patterns are designed to facilitate flying from such position.

We find no merit to the defendant's contention that plaintiff did not make a prima facie case. The subject policy is not one of limited coverage insuring only against specific perils and thereby placing the burden upon the insured to show the existence of particular conditions. See Metropolitan Life Insurance Co. v. Rosier, 189 Okl. 448, 117 P.2d 793 (accidental death); Shannon Furniture Co. v. Federal Surety Co., 159 Okl. 205, 15 P.2d 22 (limited robbery); ...