Western Reserve Life Ins. Co. v. Meadows, 15413

• Decision Date: 06 March 1953
• Docket Number: No. 15413,15413
• Citation: 256 S.W.2d 674
• Parties: WESTERN RESERVE LIFE INS. CO. v. MEADOWS.
• Court: Texas Court of Appeals

Page 674

256 S.W.2d 674

WESTERN RESERVE LIFE INS. CO. v. MEADOWS.

No. 15413.

Court of Civil Appeals of Texas, Fort Worth.

March 6, 1953.

Rehearing Denied April 3, 1953.

J. W. Wheeler, of Austin, for appellant.

Alexander & Martin, of Fort Worth, for appellee.

BOYD, Justice.

Suit by Jennie Louise Davidson Meadows, the beneficiary in five policies of life insurance issued October 6, 1932, by Western Reserve Life Insurance Company, to recover the sum of $1,000 accidental death benefits on each policy. Western Reserve Life Insurance Company admitted liability for the face amount of the policies involved but denied liability for double indemnity benefits. The accidental death benefit rider, which is the subject matter of this suit, appearing in each policy, contains the following provisions: 'This Accidental Death Benefit shall be void if the Insured shall be in military, naval, or allied service in time of war at the date of the accident, * * *; nor does it cover death resulting directly or indirectly from any of the following, to-wit: Participation in aeronautics; * * *.'

The parties entered into the following stipulations:

1. 'That Benjamin Earle Meadows' death resulted from bodily injuries caused directly, exclusively and independently of all other causes, by external, violent and accidental means, to-wit: by the crash of a Military Plane on which he was a passenger and traveling under military orders from Fort Richardson, Territory of Alaska, to Fairbanks, Territory of Alaska, for the purpose of opening bids on Army Air Field Construction in Fairbanks.'

2. 'That at the time of his death on August 23, 1951, Benjamin Earle Meadows was a Lieutenant Colonel in the Army Engineers Corps of the United States Army and was in military service on the 23rd day of August, 1951, and at the time of his death.'

3. 'That Benjamin Earle Meadows' death occurred instantly on the 23rd day of August, 1951, when a United States Army plane on which he was traveling as a passenger, under official orders, 'said orders being issued by authorized United States Army Personnel,' crashed and burned on a runway at Summit, Territory of Alaska, after said plane had lost a wing.'

4. '* * * That part of the duties of said Benjamin Earle Meadows at and for several months prior to his death was the supervision of the construction of United States Air Fields and other Army installations in the Territory of Alaska, and he was in the performance of such duties at the time of this death.'

5. 'That in the performance of his said duties, said Benjamin Earle Meadows was required to and did fly in United States Army planes under official orders issued by proper authorities from one Army Air Field to another in the Territory of Alaska for the purpose of supervising, aiding and advising with reference to the construction of and improvement of United States Army Air Fields as well as other Army installations.'

It was further stipulated: (a) that through midnight, September 7, 1951, the United States forces had suffered 82,362 casualties in Korea, as shown by release of the Department of Defense, Office of Public Information, for which notification of next of kin had been made; and (b) that by letter dated June 6, 1942, the appellant advised the insured, who was then in military service, that the extra accidental benefit provisions did not apply so long as he was in the armed services in time of war, and that this provision would be removed upon request. He made the request, and the provision was removed. On April 6, 1946, at insured's request, this provision was restored.

Western Reserve Life Insurance Company answered in the trial court pleading that it admitted liability for the face amount of such policies but denying liability for the accidental death benefits, specifically pleading the exclusions contained in the policies and the accidental death benefit riders, and that at the time of the accident which resulted in the death of Benjamin Earle Meadows the insured was in military service in time of war and that his death resulted directly or indirectly from participation in aeronautics.

Trial was before the court without a jury and the court rendered judgment in favor of plaintiff for $5,000 together with 12% statutory damages, interest, and $1,500 attorneys' fees.

The trial court held that Col. Meadows' death did not result directly or indirectly from participation in aeronautics, and that it did not occur while he was in military service in time of war. The appeal brings such holdings before this court for review.

Five points of error are presented by the appellant, but they involve only two propositions, namely: that the trial court erred in not finding that the insured's death resulted directly or indirectly from participation in aeronautics, and in not finding that it occurred while he was in military service in time of war, under the exclusion clauses of the policies.

'Undoubtedly the parties to an insurance contract may make it in any legal form they desire and, in the absence of statutory prohibitions, insurers may limit their liability and impose whatever conditions they please upon their obligations not inconsistent with public policy. That the conditions may be harsh does not affect the rule, as no one is compelled to deal with the insurers on basis of such conditions.' Hatch v. Turner, 145 Tex. 17, 193 S.W.2d 668, 669.

The rule of construction of contracts is to ascertain the intention of the parties from the contract itself. The terms, unless ambiguous, will establish the rights of the parties. Citizens National Bank in Abilene v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003. It is settled law that when the terms of an insurance policy are ambiguous and susceptible of more than one construction they should be interpreted strictly against the insurer and liberally in favor of the insured. 24 Tex.Jur., p. 705. The validity of a provision of an insurance policy limiting liability because of the connection of the insured with military forces is almost universally recognized. Sovereign Camp W. O. W. v. Jackson, Tex.Civ.App., 264 S.W. 289; 137 A.L.R. 1263.

There are many cases involving insurance policy exclusion clauses relating to participation in aeronautics the same as, or very similar to, the one before us, with the same or similar fact situations, and there is, or was, some lack of uniformity in the holdings of the courts.

In 1921, in Bew v. Travelers Insurance Co., 95 N.J.L. 533, 112 A. 859, 14 A.L.R. 983, the New Jersey Court of Errors and Appeals held that in the accidental death of a fare-paying airplane passenger, recovery was precluded by a clause in the policy as follows: 'nor shall it cover injuries * * * sustained by the insured while participating in or in consequence of having participated in aeronautics.' It may be well to note, however, that in the Bew case the insured, a passenger, lost his life in the crash of an airplane which was being used by its owner to carry passengers 'at so much a trip, just to see Atlantic City, and for the novelty of the thing.'

Also, in 1921, in Travelers Insurance Co. v. Peake, 82 Fla. 128, 89 So. 418, the Supreme Court of Florida, on the sole authority of the Bew case, held that 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 ". The insured in the Peake case was attending the Alabama State Fair and was injured while taking a short trip for hire in an airplane operated for that purpose at the fair grounds.

The Bew and Peake cases were followed by the courts in some other jurisdictions, notably in Meredith v. Business Men's Accident Association, 1923, 213 Mo.App. 688, 252 S.W. 976.

But courts in many jurisdictions have held that where accidental death occurred while the insured was an airplane passenter the beneficiaries could recover under exclusion clauses prohibiting recovery if death occurred while the insured was 'participating in aeronautics,' and this holding seems to be supported by reason and the weight of authority.

In Marks v. Mutual Life Ins. Co. of New York, 9 Cir., 96 F.2d 267, the court said that 'The time for reconsideration of earlier views had already arrived (1928) when the policy was issued.'

In the following cases, Mutual Benefit Health & Accident Ass'n v. Bowman, 8 Cir., 99 F.2d 856, and Mutual Benefit Health & Accident Ass'n v. Moyer, 9 Cir., 94 F.2d 906, 907, recovery was allowed for death of a passenger resulting from a plane crash when the exclusion clause excepted liability if death occurred "because of or while participating in aeronautics."

In Martin v. Mutual Life Ins. Co., 189 Ark. 291, 71 S.W.2d 694; Gregory v. Mutual Life Ins. Co. of New York, 8 Cir., 78 F.2d 522, writ denied; Massachusetts Protective Ass'n Inc. v. Bayersdorfer, 6 Cir., 105 F.2d 595; Swasey v. Massachusetts Protective Ass'n, Inc., 9 Cir., 96 F.2d 265; Chappell v. Commercial Cas. Ins. Co., 120 W.Va. 262, 197 S.E. 723; and Marks v. Mutual Life Ins. Co. of New York, supra, recovery was allowed for the death of an airplane passenger when the exclusion clause read: 'if death resulted from * * * participation in aeronautics.'

In Martin v. Mutual Life Ins. Co. of New York, supra (189 Ark. 291, 71 S.W.2d 695), the Supreme Court of Arkansas held that a provision in a policy excepting insurer from liability for death resulting from "participation in aeronautics" did not prevent recovery where insured was killed in a crash of an airplane in which he was riding as an invited guest.

In 1935, in Gregory v. Mutual Life Ins. Co. of New York, supra (78 F.2d 523), the court said: '* * * one who rides the plane for the sole purpose of going some place, of being transported by it as a passenger, is not, we think, in the absence of specific words requiring such construction, participating in aeronautics. He does not belong to the same craft or class as those skilled artisans who...