Wendorff v. Mo. State Life Ins. Co.

• Decision Date: 07 December 1927
• Docket Number: No. 25950.,25950.
• Citation: 1 S.W.2d 99
• Parties: JOHN D. WENDORFF, Administrator of Estate of GLADYS T. BULTE, Appellant, v. MISSOURI STATE LIFE INSURANCE COMPANY.
• Court: Missouri Supreme Court

1 S.W.2d 99

JOHN D. WENDORFF, Administrator of Estate of GLADYS T. BULTE, Appellant, v. MISSOURI STATE LIFE INSURANCE COMPANY.

No. 25950.

Supreme Court of Missouri. Division No. 1.

December 7, 1927.

Appeal from Jackson Circuit Court. — Hon. O.A. Lucas, Judge.

AFFIRMED.

John D. Wendorff for appellant.

(1) Plaintiff made out a prima-facie case, which entitled him to have the case submitted to the jury: Goodes v. United Comm. Travelers, 174 Mo. App. 330; Greenlea v. Casualty Co., 192 Mo. App. 303; Fetter v. Federal Casualty Co., 174 Mo. 256; Biele v. Travelers' Protective Assn., 155 Mo. App. 629; Randall v. Railroad Co., 109 U.S. 482; Cooper v. Nat. Life Ins. Co., 253 S.W. 467; Kahn v. Casualty Co., 240 S.W. 797. (2) The evidence does not bring this case within the exception for the reasons: (a) The hydroplane at the time of the injury to August J. Bulte, which caused his death, was not a "vehicle or mechanical device for aerial navigation," but was a vessel or boat. (b) August J. Bulte was not injured while in or on any vehicle or mechanical device for aerial navigation or in falling therefrom or therewith or while operating or handling any such vehicle or device. Reinhardt v. Newport Flying Service Corp., 133 N.E. 371; Long v. Life Ins. Co., 248 S.W. 923. (3) The law does not favor forfeitures. If the policy is susceptible of two constructions, one of which would work a forfeiture of the policy and the other not, the interpretation most favorable to the assured will be adopted by the court and the forfeiture of the policy prevented. Landrigan v. Life Ins. Co., 245 S.W. 385; Mathews v. Modern Woodmen, 136 Mo. 342; Renn v. Supreme Lodge, 83 Mo. App. 447.

Jourdan & English and McAllister, Humphrey & Pew for respondent.

(1) There is a total absence of proof: (a) That the Miss Miami was a vessel within the meaning of Part A of the policy; 8 Words & Phrases (1 Series), p. 7297; Warn v. Transp. Co., 2 N.Y. Supp. 622; Webster's New International Dictionary, p. 2279. (b) That it was licensed as a vessel for the transportation of passengers; 9 Fed. Stats. Anno., p. 415 et seq. (c) That it was supplied by a common carrier. Brown v. Ins. Co., 8 Fed. (2d) 996; Frost v. Livery Co., 148 Mo. App. 621; Rathbun v. Ocean Co., 299 Ill. 562; North American Ins. Co. v. Pitts, 40 A.L.R. 1171; Chenery v. Assurance Co., 4 Fed. (2d) 826. (2) The Miss Miami was a "vehicle of mechanical device for aerial navigation" within the meaning and purpose of the policy. "Aerial" and "aeronautics," Webster's New International Dictionary, p. 36; Meredith v. Accident Assn., 252 S.W. 976; Long v. Ins. Co., 248 S.W. 923; Pittman v. Ins. Co., 17 Fed. (2d) 370; Maupin v. Surety Co., 220 S.W. 20; State ex rel. v. Allen, 257 S.W. 737; Newman v. Accident Co., 192 Mo. App. 159; State ex rel. v. Allen, 267 S.W. 379; Robyn v. Casualty Co., 257 S.W. 1065. (3) The burden was on the plaintiff to prove that the death of the insured resulted from one of the causes covered by the policy, and upon failure to make such proof it was the duty of the court to direct a verdict for defendant. Frost v. Central Assn., 246 S.W. 628; Freeman v. Ins. Co., 196 Mo. App. 383; Brunswick v. Ins. Co., 278 Mo. 154; Phillips v. Ins. Co., 231 S.W. 947. (4) There is no question of forfeiture involved in the case, and the authorities cited by appellant have no bearing on any question in the case.

ELLISON, C.

This is a suit on an accident policy. On the plaintiff's evidence the Jackson County Circuit Court gave a peremptory instruction for defendant and plaintiff appealed. He sues as administrator of Gladys T. Bulte, deceased. The policy was issued by the respondent to August J. Bulte, her husband, insuring him against accidental death or bodily injury, the sum due in event of death to be payable to the wife.

Among other conditions, the policy obligated the respondent to pay an indemnity of $10,000 for loss of life resulting from bodily injuries effected directly and independently of all other causes solely through accidental means, provided death follow within ninety days. This requirement is referred to hereinafter as the single indemnity provision of the policy. There was still another clause, as follows: "The insurance hereunder shall not cover injuries fatal or non-fatal, ... sustained by the Insured... while in or on any vehicle or mechanical device for aerial navigation, or in falling therefrom or therewith or while operating or handling any such vehicle or device."

The insured met his death while a passenger en route from Miami, Florida, to Bimini in the Bahama Islands, on an aircraft of a type called a seaplane. Because of engine trouble the 'plane was forced to alight at sea and shortly thereafter was capsized by the waves. A few minutes later the lifeless body of the insured was seen floating in the water close by.

The appellant contends the proof of the foregoing facts made a prima-facie case of accidental death by drowning, upon which the cause should have been submitted to the jury. The respondent maintains that on appellant's own showing recovery is precluded by the "flying machine clause" of the policy. To that appellant rejoins the clause has no application because: (1) the provision refers only to injuries sustained while actually flying in the air; (2) the seaplane was not a flying machine, but a boat or vessel at the time and under the facts involved in this controversy; (3) the insured was not injured either while in the machine or in falling therefrom, but lost his life by drowning.

As the facts are undisputed, the case turns on the construction to be given the policy. We are of the opinion that the casualty came within the stipulated exception and that the conclusion of the trial court was right; but for a proper understanding of the ruling of both courts it is necessary to set out the evidence more fully before discussing the legal questions.

Only one witness testified, Robert L. Moore. He was the owner of the seaplane and aviator on the fatal flight. He was an experienced pilot, and had served with distinction in the combatant air forces during the World War. With a partner he conducted a commercial air line between Miami and the Bahama Islands, under the name Miami Airways. The seaplane which figured in the accident bore the name Miss Miami. It was constructed in 1919 by the Curtis corporation of Buffalo, New York, and held the speed record from New York to Miami. The craft was constructed with a hull like a boat, 23 feet long, and carried six passengers, including the pilot. The spread of the wings was 76 feet. It was powered with a Liberty motor and air propeller.

To enable the 'plane to mount into the air it was necessary for it to run some distance in gathering speed before leaving the water. Likewise at the end of a flight it would light on the water. To this extent, as well as in furnishing quarters for passengers, the hull was an essential part of the flying equipment. In taking off, the same engine and air propeller were used (and in the same way) to impart the necessary initial velocity that were employed in drawing the vehicle through the air. By running the engine more slowly the craft could be made to move along the water without rising. This was called "taxiing." In this way it was possible to use the seaplane like a boat. The witness referred to the 'plane several times as a boat — said it "was a worthy boat, designed to meet and stand all conditions at sea;" that it "was employed as a flying machine or as a boat, as you like;" and that it was "a combination seaplane, both air and water." He further said that by manipulation of the hinged winged surfaces of the plane, they could be made to serve as sails, and that, on one occasion when he had been compelled to make a forced landing at sea, he had, by that means and skillful navigation, been able to sail twenty miles into the harbor of Nassau.

For the trip from Miami to Bimini on the morning of March 22, 1922, the Miss Miami was chartered by the insured, Mr. Bulte, the intestate, Mrs. Bulte, a Mr. and Mrs. Smith and a Miss Dixon. The distance is 52 miles; the flying time a little over 30 minutes. The trip is over sea and is made by air without intermediate landing except in case of mechanical trouble. On this particular occasion the flight would have continued straight through to Bimini but for motor trouble which developed en route and forced the seaplane down; but the story of the flight is best told in the language of the witness:

"We left the water at 11:04 by the clock. At 11:50 motor trouble developed, giving absolutely no warning whatsoever, the motor was absolutely dead, having just passed a schooner a few minutes before, and I happened to know the captain; I signaled him I was all right by moving the wings. I had seen my port for quite sometime, it was only eight and a half miles to Bimini. As I said before, trouble developed and I was obliged to volplane down. In landing, landing was very difficult, very hard in the extreme condition, as the sea was raging at this time from six to eight feet, approximately ten feet high some waves were, as in the gulf streams every third wave is the largest, by coming in the drive wave, I managed to make a decent landing; the waves were breaking high, sometimes entirely over the machine, each time taking in a little water.

"By taking the motor cover carried in the hull and placing it over the passengers so water would run over the hatch covers and not run into the cock-pit, I thought this would enable me to devote some time to the trouble. A huge wave hit the wing of the machine causing the boat to list to the extreme right side, naturally filling the cock-pit full of water, acting as a pivot, the motor being on top and top heavy, it acted as a pivot and turned completely over. When I came out of the hatch cover, I managed to find my way up by feeling, to the surface.

"I noticed Mrs. Bulte within a few feet of the left wing and Mrs....