Summary
In Gits v. New York Life Ins. Co. (C.C.A.7) 32 F.2d 7, it was held that the clause "engaging in submarine or aeronautic operations" did not embrace a passenger on a pleasure flight.
Summary of this case from Day v. Equitable Life Assur. Soc. of the U.S.Opinion
No. 4063.
April 11, 1929. Rehearing Denied May 27, 1929.
Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.
Action by Valentine Gits against the New York Life Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Under date of February 19, 1920, appellee issued its policy of insurance to one Gits, of Illinois, for $10,000 to be paid appellant (his wife) in case of death of insured, or for double the face of the policy upon the conditions following:
"Upon receipt of due proof that the death of the Insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental cause, and that such death occurred within sixty days after sustaining such injury.
"This Double Indemnity Benefit will not apply if the Insured's death resulted from self-destruction, whether sane or insane; from any violation of law by the Insured; from Military or Naval Service in time of war; from a state of war or insurrection; from engaging in submarine or aeronautic operations; from physical or mental infirmity; or directly or indirectly from illness or disease of any kind."
From the oral evidence of record it appears that on August 7, 1923, insured and his wife and daughter, while on a pleasure trip, were horseback riding in Estes Park, Colorado, and as they approached an airplane field deceased inquired of the pilot of an airplane whether he might have a ride. The pilot assenting, Gits got into the plane, was strapped to his seat, and the engine started. The deceased, smiling and apparently happy, waved goodbye, and the airplane started. Two or three minutes afterwards the airplane came down, its nose to the ground and tail in the air. The wife and daughter hurried over to the place where it was, and found deceased on a stretcher, partly covered. He died an hour or so afterward from the injuries he sustained in his descent either from or with the plane.
Appellee paid appellant the death indemnity of $10,000, but declined to pay the double indemnity.
Upon the trial appellant offered in evidence the proof of death, which had been submitted by appellant to the company. It seems from the record that appellant sought to introduce the proof minus certain newspaper clippings, which appear to have been attached to the proof when submitted, and referred to in the claimant's statement attached to the proof. On the face of the proof appears the statement by appellant that deceased suffered "accidental death (see clipping attached)." The proof was offered without the clippings, and appellee objected unless the clippings were attached. The court ruled that the clippings must remain attached, and the proof was thus offered by appellant. From the fact that they are referred to as "clipping," it may be assumed that they were newspaper clippings, but from what newspapers, or when published, or what was the source of information, nowhere appears. The clippings, two in number, are as follows:
"Man Killed in Leap from Plane at Estes Park Lost Senses at Start of Flight, Marbut Says."Illinois Manufacturer Rose in Seat Soon After Taking Air, Pilot Declares — Crash Due Only to Attempt to Avoid Body.
"Fort Collins, Colo., Aug. 9. — A.H. Gits, Illinois manufacturer who was killed in a leap from an airplane at Estes Park Tuesday, went completely out of his mind while the machine was racing along at high speed soon after taking the air on the fatal trip, George W. Marbut, pilot of the machine, declared Wednesday.
"`There was nothing wrong with the ship,' said Marbut, `but as we were going along, Gits suddenly rose from his seat, undoing the strap which held him in.
"`I yelled at him to sit down, and made for the earth as fast as we could go. There was no barbed wire fence to avoid, as in the story first told. The only reason that I crashed to the ground was to avoid hitting Gits' body as it rolled before the machine, following his jump.'
"Witnesses of the accident corroborated Marbut's story. It is believed that Gits suddenly lost his mind, either from fear or some other reason. Marbut undoubtedly was making a fair landing, it was said, when he saw the man's body in front of the machine. It was explained afterward that the pilot, while flying in another part of the country, had seen an airplane fall on a man in a similar accident and a vivid recollection of the tragedy caused him to risk his own life by turning the nose of the ship to the ground.
"Coroner W.T. Hollowell announced Wednesday evening that there would be no inquest. The body of the dead man was brought to Ft. Collins and will be shipped immediately to Oak Park. Two brothers are said to now be in Denver and will accompany the body east.
"According to friends, Gits was a member of the Gits Brothers Manufacturing Company of Oak Park and was very wealthy. He had been planning a tour around the world with his wife and young daughter, both of whom saw him fall in the accident Tuesday after the completion of his trip to the Rocky Mountain parks."
"Panic-Stricken Passenger Is Killed as He Leaps from Airplane Near Estes Park.
"Eastern Visitor Dies of Broken Neck when He Jumps as Forced Landing is Made — Machine Demolished — Pilot Escapes with Skinned Nose.
"Estes Park, Colo., Aug. 8 — A.M. Gitf of Oak Park, Ill., was killed here late Tuesday when he became panic stricken and leaped from an unmanageable airplane.
"Gitf fell to his death in sight of his wife and 7-year-old daughter, who had arrived here Tuesday with Gitf on the American Express tour.
"George Marbut, the pilot of the plane, escaped with slight injuries when the machine crashed.
"Gitf, a member of the American Express tour which arrived at Estes Monday morning, was riding horseback with his wife and daughter, when he approached the airplane hangar near the Stanley hotel. He declared that he was going to take a ride in the machine, and his family stayed to watch him and Marbut take to the air a few moments later.
"When the machine had covered less than a mile, the watchers on the ground below could see that some trouble had occurred. The plane lurched twice and Marbut was seen to turn the nose of the machine toward the earth. He reached within a few feet of the ground, when he was forced to again turn the machine toward the skies in order to avoid a barbed wire fence.
"Gitf, evidently panic stricken, crawled out on a wing of the airplane and jumped. His body, rolling ahead of the machine, caused Marbut to turn the nose of the plane directly into the ground, in an effort to keep from running over his body.
"The machine struck the earth with tremendous force and was completely demolished, but the pilot escaped with skinned features. Gitf's neck was broken by his fall, according to Dr. Henry Reid, who was called to the scene, but he lived long enough to be carried to his rooms in the Lewiston hotel. He died at 6:30 o'clock Tuesday evening, less than an hour and a half after he had started on his venture.
"The forced landing was made in the bluffs, only three-quarters of a mile from the Stanley. Though it was treacherous ground, had the dead man remained in the machine, a safe landing would undoubtedly have been made, according to reports, as Marbut's crash was only due to his effort to keep from striking Gitf's body.
"Mrs. Gitf, Tuesday night, telegraphed the dead man's brother in Oak Park. The brother left for Denver immediately and will arrive there late Wednesday night. The body will be taken to Denver, Wednesday."
Thereupon the evidence for appellant was closed, and on behalf of appellee a motion was made to exclude all evidence from the jury and direct a verdict against appellant and in favor of appellee. The motion concluded as follows:
"This motion, however, is made with the express reservation that if it be that the plaintiff offers her motion to like effect at the close of her evidence and therein moves that the court direct the jury to find and return a verdict in favor of the plaintiff and against the defendant, then, and if also the court overrule this motion of the defendant, the defendant will offer evidence tending to rebut the evidence of the plaintiff and in support of the defense of the defendant for the consideration of the jury as well as of the court."
Upon presentation of the motion appellee's counsel stated:
"Your honor will note the terms of the motion I have made, and show, I believe, the proper reservations in this motion for the protection of the defendants' rights in the event that this motion which I make is overruled."
Thereupon counsel for appellant stated:
"I have a cross motion to make, which is — that the court instruct the jury to find for the plaintiff, this motion being based on the theory that the defense of suicide and the defense of aeronautic operations are not now open to the defendant, and my motion is that the court instruct the jury to find issue for the plaintiff and to assess the plaintiff damages in the sum of ten thousand dollars, with interest at 5% per annum from August 7, 1923, to date."
The court instructed the jury to find for the appellee, and verdict was returned and judgment rendered accordingly.
Daniel M. Dever, of Chicago, Ill. (Daniel V. Gallery, of Chicago, Ill., of counsel), for appellant.
Samuel Topliff and Homer H. Cooper, both of Chicago, Ill., for appellee.
Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.
At the threshold lies appellee's contention that insured's death resulted "from engaging in submarine or aeronautic operations," and that therefore liability for the double indemnity did not arise. The solution of this question depends on what is meant in the policy by the words "engaging in aeronautic operations," and, specifically, whether a casual passenger in an airplane is "engaging in aeronautic operations."
The very words suggest to us the quality of continuity and frequency, as well as some degree of participation in the use of the instrumentality. It is readily conceivable that an insurer might wish to except from such liability one who habitually, and as an occupation, participates in the operation of such an instrumentality, by declining to assume any liability while the insured is so engaged, and yet be willing to assume liability for the occasional hazard which would attach in the case of a passenger. If the inhibition were against engaging in maritime or seafaring operations, it would hardly be contended that an occasional passenger on an ocean steamer was excepted; or if applied to "engaging in railroading operations," that the indemnity would be suspended while one was riding as a passenger on a train. Can the audience at a theater, or opera, or movie show be properly said to be "engaged in dramatic, or operatic, or cinematographic operations"? We think the question answers itself negatively, and can see no reason for a different conclusion where the subject is "aeronautic operations."
The decisions are not entirely harmonious upon situations more or less similar. A rather striking case is that of Masonic Acc. Ins. Co. v. Jackson, decided by the Supreme Court of Indiana January 23, 1929, and reported in 164 N.E. 628. The policy there excepted liability if the death occurred "while engaged in aviation or ballooning." Deceased met his death as the result of a mishap to an airplane while he was a passenger in it, and it was contended for the company that he was "engaged in aviation." The Indiana circuit court held that a passenger riding in an airplane was not within the exception, and awarded judgment against the insurer. On appeal to the Appellate Court it was held that riding as a passenger was "engaging in aviation," within the purview of the exception in the policy, and the judgment was reversed. Masonic Acc. Ins. Co. v. Jackson (Ind.App.) 147 N.E. 156. After the oral argument of the cause in this court the opinion of the Supreme Court of Indiana was handed down, supra, wherein the judgment of the circuit court was affirmed.
With the reasoning of the Indiana Supreme Court we are entirely in accord, and for elaborate discussion of the proposition and review of the authorities thereon we refer to that opinion, and refrain from further discussion of the question except to say that the language in the instant case is less favorable to the insurer than it was there. Here the exception is while "engaged in aeronautic operations"; there the word "operations" was not present, the exception being "while engaged in aviation." Surely the employment of the word operations tends more certainly to indicate an intended continuous and occupational relation.
While we are satisfied that the conclusion upon that proposition should be the same here as that reached by the Supreme Court of Indiana in the Jackson Case, enough has been said to indicate that, at the very best, the intent and scope of the clause is ambiguous and involved in doubt. The ambiguity and doubt are emphasized by the facility with which the insurer could have included passengers within the exception, were it so intended. It is elementary that in insurance policies ambiguous and doubtful language is taken most strongly against the insurer, and we have no hesitancy in concluding that, within the purview of the policy, the death of this passenger did not occur while he was "engaged in aeronautic operations."
Appellee further contends that the evidence shows insured's death to have resulted from self-destruction, and that, under the policy, double indemnity is not recoverable.
That deceased came to his death from "bodily injury effected solely through external, violent * * * cause" and "independently of all other causes," the oral evidence on the trial abundantly establishes. By the terms of the policy, before recovery under the policy is permissible, it must further appear that the death was the result of accident. But when a death from external, violent means is shown, to which no disease or bodily infirmity contributed, then it must of necessity have resulted either from accidental means or from self-destruction. The evidence of the wife and daughter, showing them to have been on a pleasure trip, and his evidently happy frame of mind as he proposed and undertook the thrilling diversion of an airplane ride, affords some evidence tending to support the conclusion of accident. No eyewitness of the actual manner of the happening testified. The only evidence in the record which may be said to have tendency to support the theory of suicide is that afforded by one of the clippings which appeared attached to the proof of death.
Passing the contention here urgently put forth in briefs and argument, but of which the record affords no evidence, that the clippings were not attached to the proof of death, nor referred to therein when the proof was submitted to the company, and assuming that under such decisions as Insurance Co. v. Newton, 89 U.S. 32, and Jensen v. Continental Life Ins. Co. (C.C.A.) 28 F.2d 545, they are, if unconditionally submitted by the beneficiary as part of the proof of death, competent evidence upon the issues of the case, we give them some consideration.
From the first of the clippings above set forth inference might be drawn that the death was the result of self-destruction; but even this would not be conclusive, for against it might be considered the conditions and facts, as testified by the wife and daughter, and the question of self-destruction would then be for the jury. New York Life Insurance Co. v. Ross (C.C.A.) 30 F.2d 80. But the second clipping as set forth is at least as persuasive of the conclusion of accidental death as the first is suggestive of self-destruction. It would appear from this account that shortly after the airplane arose it became unmanageable, and that the deceased, being suddenly confronted with the alternative of remaining in his place until the airplane crashed to the ground, or taking the chance of leaving it, chose the latter course and jumped; and while from the outcome it appears probable that had he stuck to the plane he might have escaped with slight injury or none, his decision to jump would not stamp his resultant death as suicide or self-destruction.
But, says appellee, the question of self-destruction was an issue of fact, and since at the close of the evidence for appellant each party presented a motion for a directed verdict, the granting of appellee's motion conclusively determined the question of self-destruction in appellee's favor, under the rule stated by this court. Childs Co. v. Harris Trust Savings Bank (C.C.A.) 27 F.2d 633.
But was there, by each party, a motion for a directed verdict as respects the question of suicide? It seems to us that from the record, as set forth in the statement of facts, the motions for a directed verdict were intended to have, and did have, reference only to the question of the construction of the double indemnity clause. If this was held to exclude liability for death of a passenger while riding in an airplane, then nonliability followed regardless of whether or not the death was occasioned by suicide.
Appellee, by the very terms of its motion and in presenting it to the district court, expressly refrained from submitting any question of fact, such as suicide, by reserving the right to present evidence in case the court declined to grant its motion for a directed verdict. It seems evident to us from this record that the only question which the motion submitted to the court, and the only question which the court decided, was that of the construction of the excepting clause; and, this being so, appellee cannot now have the advantage of a submission which it very evidently did not intend to make and did not make.
Many other questions were raised and argued which we do not deem it essential to consider.
Holding as we do that this clause respecting engaging in aeronautic operations does not embrace a passenger riding in an airplane, and that the question of self-destruction was for the jury, it follows that the judgment must be, and it hereby is, reversed, and the cause remanded for another trial.