DocketNumber: No. 4-4814
Citation Numbers: 109 S.W.2d 1263, 194 Ark. 1023
Judges: McHANEY, J.
Filed Date: 11/15/1937
Status: Precedential
Modified Date: 1/12/2023
On June 19, 1930, appellant issued and delivered to William R. Dyess, husband of appellee, its two policies of life insurance, one in the sum of $10,000, and the other in the sum of $5,000. The two policies are identical except for the face amount. Each policy provided for double indemnity in case of accidental death, and defines accident as follows: "Death from accident means death resulting solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means and ensuing within 90 days of such injuries, but does not include death resulting from or caused directly or indirectly by self-destruction, sane or insane, disease or illness of any kind, physical or mental infirmity, military or naval service in time of war, engaging as a passenger or otherwise in submarine or aeronautic expeditions or operations, or by the insured's violation of any law. * * *." The italicized portion of the above-quoted clause forms the basis of the principal contention made in this lawsuit. Under the options contained in the policies, the beneficiary named therein, appellee, elected to have the net sum due thereunder applied under option No. 1, which provides that the proceeds may be paid as follows: "1. Deposit Option: Left on deposit with the society at *Page 1025 interest guaranteed at the rate of 3 per cent. per annum, with such excess interest dividend, as may be declared."
It was agreed by the parties that appellant held on deposit for appellee the sum of $10,036.55, under the first policy above mentioned, being the face amount of said policy with interest, without prejudice to the rights of appellee to claim under the double indemnity clause of the policy. Under option No. 1, above quoted, appellant agreed to pay the beneficiary monthly installments at the rate of 3 per cent. per annum, plus such excess dividends as might be declared by it. The monthly installments under the terms of said policy, including the excess interest thereon, amount to $27.83 per month and the complaint alleged that the appellant was in default for four monthly payments, aggregating $111.32. Prayer was for judgment in that sum plus the additional sum of $27.83 for each month up to and including the date of final judgment, together with interest, a 12 per cent. penalty and attorneys' fees. Similar allegations were made as to the $5,000 policy, the monthly payments being alleged to be $13.91 per month, four of which were in default and for which a like prayer was made.
Appellant filed a petition and bond for removal to the federal court which was denied, and it then answered, admitting its liability for the face amount of each policy, but denying liability under the double indemnity provisions of said policies. It is conceded that on January 14, 1936, the insured was killed while a passenger on an American Airlines plane from Washington, D.C., to Little Rock, when the plane on which he was a passenger crashed neat Goodwin, Arkansas. Appellant's only defense was that the insured's death resulted from engaging as a passenger in aeronautic expeditions or operations. Appellant, also, amended its answer, setting up numerous trips from and to Washington, from and to Little Rock, prior to his death in the airplane. Appellee, also, amended her complaint by alleging that since its filing she had learned that appellant pays a smaller rate of excess interest when payments are demanded monthly than on an annual basis, and that the excess interest rate *Page 1026 on the monthly basis amounts to 25 per cent.; that she is entitled, as of the date of the amendment, to fourteen monthly installments of $27.08 under the first policy, and fourteen such installments of $13.54 under the second policy, and she offered to accept said amounts in full settlement of her claims for interest from the amount left with appellant under said policies. It was later stipulated that the complaint might be so amended, and that the amounts set forth were correct. The above facts were. all stipulated, and in addition, that the insured had no connection with the American Airlines, Inc., and that he had no direction or control over the operation of said airplane. Trial to the court, sitting as a jury, resulted in a judgment in appellee's favor for the monthly benefits sued for, which included, also, the benefits providing for double indemnity. The court also entered judgment for a 12 per cent. penalty and allowed attorneys the sum of $1,250 for attorneys' fees.
For a reversal of the judgment, it is first argued that the court erred in refusing to remove the case to the federal court. The basis of this argument is that since appellant is contingently liable for more than the jurisdictional amount of $3,000, that amount ought to control the jurisdictional question instead of the sum sued for, which is the aggregate amount of the monthly installments due at the time of trial. We think appellant is precluded on this issue in cases both in this and the Supreme Court of the United States, cited by appellant, which it attempts to distinguish from the case at bar. The cases referred to are Mutual Life Insurance Company v. Wright,
Passing now to the principal contention made on this appeal, and that is that the exception in the double indemnity clause above quoted, that death from accidental means does not include death resulting from "* * * engaging as a passenger, or otherwise in * * * aeronautic expeditions or operations * * *," it is undisputed that appellant was a passenger in an airplane on a journey from Washington to Little Rock at the time he was killed. The question is, Was he engaged as a passenger in an aeronautic expedition or operation? If appellant meant to exclude liability for double indemnity while riding as a passenger or otherwise in any kind of aircraft, why did it not say so in such plain language that a wayfaring man, though a fool, might not be deceived thereby? It would appear a simple thing for a great institution, such as appellant, to write a clause in its policies exempting itself from such liability in plain and simple language. The word "aeronautic" here used, is an adjective and used in the sense of pertaining to aeronautics, and Webster defines the word "aeronautics" to be "the science that treats of the operation of aircraft; also the arts or science of operating aircraft." The word "expeditions" as here used, means something more than a journey or a trip by airplane. Webster defines it as follows: "2. A sending forth or setting forth for the execution of some object of consequence; Progress. 3. An important journey or excursion for a specific purpose; as, a military or *Page 1028 exploring expedition; also, the body of persons making such an excursion."
We do not appear to have had the exact language here used under consideration heretofore, but we have had somewhat similar language, and other courts have had occasion to construe the exact language. In Benham v. American Central Life Insurance Company,
Now, as to whether the insured was engaged as a passenger in an aeronautic expedition, two very well-reasoned cases are cited, which, to us, are very convincing. In the case of Day v. Equitable Life Assurance Society,
"In the Aschenbrenner case, supra, the Supreme Court adhered to the established and wholesome rule that in construing contracts words `will be given the meaning that common speech imports.' We do not believe any one, in common speech, would ever refer to an ordinary short trip in a plane as an `expedition.' In any event reasonable men might differ on the point; and if so, then the ambiguous phrase should be resolved in favor of the customer who purchased the policy and not in favor of the company which drafted it."
The other case is one involving this same appellant and is Provident Trust Company of Philadelphia v. Equitable Life Assurance Society,
"Appellant agrees that the phrases `engaged in aviation' and `engaged in aeronautics,' and similar expressions, have been held not to include one who was a passenger; but the brief suggests that: The words `as a passenger' were inserted (in the policy) therefore to remove this doubt; but by adding the words `or otherwise,' the expression became equivalent to `anybody or everybody.' It may first be asked, if the purpose was to except passengers, why a clause simply except accident while a passenger in an aeroplane was not inserted? The difficulty is not so much with the words `passenger or otherwise' as with the equivocal context `engaging * * * in submarine or aeronautic expeditions.' The insured, when killed, was no more engaged in an expedition, in the common or normal sense of the word, than if he had been a passenger on a train or bus. A passenger engaged in an aeronautic expedition would seem to be one having some part in the conduct and operation of the expedition. On the other hand, if `engaging as a passenger' was intended merely to describe persons who would be regarded as passengers within the ordinary meaning of that word, without having any part in the conduct of the aeronautic expedition, the phrase was not well chosen. Certainly, as the word is generally defined, a passenger takes no part in the operation of the vehicle in which he is carried. So far as appears, the parties used the words in their commonly understood sense and so intended them to measure their obligation."
Appellant cites and relies upon Goldsmith v. New York Life Insurance Co.,
The result of our views is that the insured was engaged neither as a passenger or otherwise in an aeronautic expedition, nor in an aeronautic operation, and that the judgment of the circuit court is correct, and must be affirmed. It is so ordered.
Pacific Mutual Life Ins. Co. v. McCombs , 188 Ark. 52 ( 1933 )
Benefit Assoc. Ry. Employees v. Hayden , 175 Ark. 565 ( 1927 )
Day v. Equitable Life Assur. Soc. of the United States , 83 F.2d 147 ( 1936 )
East & West Ins. Co. of New Haven, Conn. v. Fidel , 49 F.2d 35 ( 1931 )
Graham v. Business Men's Assur. Co. of America , 43 F.2d 673 ( 1930 )
Standard Life Ins. Co. v. Robbs , 177 Ark. 275 ( 1928 )
Mayer v. New York Life Ins. Co. , 74 F.2d 118 ( 1934 )
Wright v. Mutual Life Ins. Co. of New York , 19 F.2d 117 ( 1927 )
Goldsmith v. New York Life Ins. Co. , 69 F.2d 273 ( 1934 )
Gits v. New York Life Ins. Co. , 32 F.2d 7 ( 1929 )
Chase v. Business Men's Assur. Co. of America , 51 F.2d 34 ( 1931 )
Masonic Acc. Ins. Co. v. Jackson , 200 Ind. 472 ( 1929 )
Price v. Prudential Insurance Co. of America , 98 Fla. 1044 ( 1929 )
Christen v. New York Life Ins. Co. , 19 F. Supp. 440 ( 1937 )
Aschenbrenner v. United States Fidelity & Guaranty Co. , 54 S. Ct. 590 ( 1934 )
Flanders v. Benefit Association , 226 Mo. App. 143 ( 1931 )
Provident T. Co. v. Equitable L. A. Soc. , 316 Pa. 121 ( 1934 )
John Hancock Mutual Life Insurance Co. v. Magers , 199 Ark. 104 ( 1939 )
Kinard v. Mutual Benefit Health & Accident Ass'n of Omaha, ... , 108 F. Supp. 780 ( 1952 )
VAM Check Cashing v. Federal Insurance Company , 699 F.3d 727 ( 2012 )
Sun Life Assurance Co. of Canada v. Kiester , 83 Ga. App. 87 ( 1950 )
King v. Equitable Life Assur. Soc. , 232 Iowa 541 ( 1942 )
Reed v. Home State Life Ins. Co. , 186 Okla. 226 ( 1939 )
Beveridge v. Insurance Co. , 120 W. Va. 256 ( 1938 )
Nat. Bk. of Comm. v. N.Y. Life Ins. Co. , 181 Tenn. 299 ( 1944 )