Opinion
Opinion filed November 3, 1931.
Insurance — Accident Insurance — Aeronautics — Death of Insured — Policy Provisions — Construction. In an action to recover on anaccident insurance policy for the death of plaintiff's son, killed by accident when taken for a free airplane ride for pleasure, held insured, at the time he received his fatal injuries, was not "engaged in aeronautics" within the meaning of policy provisions providing that "said policy did not cover disability or fatal injury received by insured while engaged in aeronautics," as the word "engaged" means more than a single act or transaction and involves some continuity of action; and the term, "engaged in aviation," means that one must take part in aviation operations other than merely being in an airplane as a passenger, i.e., take part in the operation of the airplane in some way other than merely participating in flying.
Appeal from the Circuit Court of the City of St. Louis — Hon. Claude O. Pearcy, Judge.
REVERSED AND REMANDED.
Henry W. Blodgett, Charles Straub, Meyer Hessel and George J. Schlueter for appellant.
(1) The trial court erred in finding for respondent and in giving the declarations of law offered by respondent, and in refusing to give the declarations of law offered by appellant, in that the court in so doing held that the insured, although he was not in any way employed in connection with aeronautics, and at the time he received his injuries was taking a single, isolated ride in an aeroplane, was thereby "engaged in aeronautics" within the meaning of the exception clause in the policy sued on. State ex rel. Security Mutual Life Ins. Co. v. Allen, 305 Mo. 607, 267 S.W. 379; Arms v. Faszholz et al. (Ft. Dearborn Casualty Underwriters of Chicago, Ill., garnishee). 32 S.W.2d 781; Peters v. Prudential Ins. Co. of America, 233 N.Y.S. 500; Masonic Accident Ins. Co. v. Jackson, 164 N.E. 628; Benefit Assn. of Railway Employes v. Hayden, 299 S.W. 995; Head v. New York Life Ins. Co., 43 F.2d 517; Price v. Prudential Ins. Co. of America, 124 So. 817; Charette v. Prudential Ins. Co. of America, 232 N.W. 848; Gits v. New York Life Ins. Co., 32 F.2d 7; Cooper v. National Life Ins. Co. of U.S. of America. 253 S.W. 465. (2) The trial court erred in failing to assess in favor of appellant ten per cent damages for vexatious refusal to pay and to allow a reasonable attorney's fee, in that the facts were agreed that the insured, at the time he received the injuries which resulted in his death, was not in any way connected with airplanes or aviation, and was merely taking a short, single isolated ride in an airplane. Under such circumstances the defense that the insured was "engaged in aeronautics" was not such a defense as might be reasonably interposed by respondent in view of the numerous adjudicated cases on the same question, and on the interpretation of the words "engaged in." Rogers v. Connecticut Fire Ins. Co. of Hartford. 139 S.W. 265, 157 Mo. App. 671; Gibson v. Pioneer Life Ins. Co., 168 S.W. 818, 181 Mo. App. 302; Exchange Bank of Novinger v. Turner, 14 S.W.2d 425.
Gillespie Dempsey for respondent.
(1) The phrase "engaged in aeronautics" in this policy must receive a reasonable interpretation consonant with the apparent object and plain intent of the parties. Meredith v. Business Men's Acc. Ins. Assn., 213 Mo. App. 688, 252 S.W. 976; Long v. St. Joseph Life Ins. Co., 248 S.W. 923; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; Travelers Ins. Co. v. Peake, 82 Fla. 128, l.c. 130. (2). The insured was engaged in aeronauties, within the meaning of the policy, at the time he sustained the injuries which resulted in his death, and there is therefore no liability under the policy. Long v. St. Joseph Life Ins. Co., 225 S.W. 106; Meredith v. Business Men's Acc. Ins. Assn., 213 Mo. App. 688, 252 S.W. 976, l.c. 978: Long v. St. Joseph Life Ins. Co., 248 S.W. 923; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; Mackey v. Commonwealth Casualty Co., 34 S.W.2d 264; Cochran v. Standard Acc. Ins. Co., 219 Mo. App. 322, 271 S.W. 1011; Masonic Acc. Ins. Co. v. Jackson, 147 N.E. 156; Bew v. Travelers Ins. Co. (N.J.), 95 N.J.L. 533, 112 A. 859, 14 A.L.R. 983; Travelers Ins. Co. v. Peake, 82 Fla. 128, 89 So. 415; Fleckenstein v. Fleckenstein, 66 N.J. Eq. 252, l.c. 256; Green v. National Casualty Co., 87 Wash, 237; People v. Corbalis, 86 A.D. 531; Dellehay v. Hickey, 71 S.W. 1; Hess v. Preferred Masonic Acc. Assn., 40 L.R.A. 444, l.c. 449; Wilkinson v. Travelers Inc. Co. Tex.), 72 S.W. 1016; Kennedy v. Maryland Casualty Co., 26 F.2d 501. (3). Respondent had a right to interpose this defense here and under these cicrumstances there is no vexatious delay. Cooper v. Nat'l Life Ins. Co. of U.S.A., 212 Mo. App. 266, l.c. 279, 253 S.W. 465.
Plaintiff, who is appellant here, brought this suit against the Benefit Association of Railway Employes, to recover on an insurance policy issued by defendant to a son of plaintiff, who sustained injuries through the fall of an airplane in which he was riding, resulting in death.
The questions presented for our determination on appeal do not necessitate any particular reference to the pleadings.
The case was tried to the court without the aid of a jury, and judgment was rendered for defendant. Plaintiff has appealed.
The case was tried upon the following agreed stipulation of facts:
"It is hereby stipulated and agreed that the facts in the above-entitled cause are as follows, and that the cause may be submitted to the court for judgment on said facts, and that this said stipulation and agreed statement of facts may be introduced and read in evidence in said cause.
"Defendant is and at all times mentioned in the petition was, a corporation duly incorporated under the laws of the State of Illinois and authorized to transact business in the State of Missouri and as such corporation is and at all said times was engaged in the business of writing and issuing policies of insurance in case of death or injuries resulting from accident.
"That on the first day of October, 1927, defendant, for the consideration of a monthly premium of three dollars and ten cents which was paid and agreed to be thereafter paid by Delbert E. Flanders, made and executed and delivered to said Delbert E. Flanders, its certain policy of accident insurance of said date, numbered 454472, a photostatic copy of which was filed herein with the petition and marked "Exhibit A;" that said photostatic copy is hereby incorporated as a part of this stipulation and agreed statement of facts, and that it was the contract in effect between the assured and the insurer.
"That said policy was in full force and effect on the 16th day of August. 1928, and that on said day said Delbert E. Flanders was, and for some time prior thereto had been, employed by the Terminal Railroad Association of St. Louis as a turntable tender, and was not at any time employed in connection with airplanes or aviation.
"That on said 16th day of August, 1928, said Flanders visited Lambert St. Louis air field in St. Louis County, Missouri, and while there asked one Alfred Kuchenmeister, a pilot of an airplane, to give him a ride in an airplane; that said Kuchenmeister consented to take him for a ride in an airplane without charge; that said Flanders then boarded said airplane piloted by said Kuchenmeister, and said airplane so piloted by said Kuchenmeister, and with said Flanders aboard, arose and made a flight around the said field, and in attempting to land, said airplane crashed, became wrecked and dismantled, and said Flanders was injured by reason of said fall and crash of said airplane.
"That thereafter, on the 30th day of August, 1928, said Flanders died solely as a result of said injuries sustained through the fall of said airplane.
"That it is provided in and by said policy that defendant would pay to plaintiff the sum of one thousand dollars, plus one hundred dollars for a funeral benefit, if said Delbert E. Flanders should die from external, violent, and accidental means, unless said death resulted from fatal injuries received while said Delbert E. Flanders was engaged in aeronautics; that said policy further provides that said policy does not cover disability or fatal injury received by said Delbert E. Flanders while engaged in aeronautics."
The policy provided, among other things, that it did not cover disability or fatal injury received by the insured "while engaged in aeronautics."
The sole question for our determination on this appeal is whether or not deceased was engaged in aeronautics, within the meaning of this policy, at the time he received his fatal injuries.
All the authorities are not in entire accord on this proposition, yet we are of the opinion that the great weight of authority is to the effect that the deceased was not engaged in aeronautics within the meaning of such a provision in an insurance policy.
In Meredith v. Business Men's Association of America, 252 S.W. 976, the Kansas City Court of Appeals held that where insured was killed while a passenger for hire in an airplane, his death came within the exceptions of a provision in an insurance policy exempting the insurer from liability if insured was killed while "participating in acronautics." We do not have to deal with the word "participating in this case. There is some difference between "participating in acronautics" and "being engaged in aeronautics." If the expression "engaged in aeronautics" is given its ordinary meaning, as it would be understood by the average or ordinary person, it must mean more than occasional participation. In the instant case deceased was at a flying field, and asked a friend to take him for a little ride, perhaps of only a few minutes duration, for pleasure, and without price. Could it be rightfully said, under these circumstances, that deceased was engaged in aeronautics? We think not.
In the case of Masonic Accident Insurance Co. v. Jackson, 164 N.E. 628, the Supreme Court of Indiana held that where insured was killed while riding in an airplane as a passenger, the insurer was liable where the policy exempted the insurer from liability if the insured was injured while engaged in aviation, and that the insured was not "engaged in aviation" within the meaning of the policy.
In Benefit Association of Railway Employes v. Hayden, 299 S.W. 995, the Supreme Court of Arkansas had before it a policy containing the exact words of the policy in the instant case. The court there held that riding as a passenger in an airplane did not constitute an exception or excepted risk under the terms of the policy, but that the phrase "engaged in aeronautics" implied that the risk excepted is for the insured to have taken part in the operation of the airplane as an occupation or otherwise, and that the mere fact alone that the insured was riding as a passenger did not come within the exceptions of the policy.
The word "engaged" means more than a single act or transaction. It involves some continuity of action. "Engaged in aviation" means that one must take part in aviation operations other than merely being in an airplane as a passenger. It means that one must take part in the operation of the airplane in some way other than merely participating in flying. [See also Charette v. Prudential Ins. Co. of America, 232 N.W. 848.]
Defendant refers to the case of Wendorff v. Missouri State Life Insurance Co. (Mo. Sup.) 1 S.W.2d 99, but the provision in that policy exempted the insurer from liability if the injuries sustained by the insured were received "while in or on any vehicle or mechanical device for aerial navigation." The provision in the policy just referred to is wholly unlike the one under consideration and lends no support to defendant's contention.
We are of the opinion that the learned trial judge was in error in rendering judgment for the defendant. The judgment is therefore reversed, and the cause remanded. Haid, P.J., and Becker, J., concur.
REPORTER'S NOTE: — Writ of certiorari in the foregoing case was denied by the Supreme Court. January 4, 1932.