Elliott, Byron K.

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Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 10 | Issue 5 Article 22-1935Clauses Excluding Aviation Injury and Death asRisks Not Assumed in Life or Accident InsurancePolicyByron K. ElliottJohn Hancock Mutual Life Insurance CompanyFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Air and Space Law Commons, and the Insurance Law CommonsThis Article is brought to you for free and open access by the Law SchoolJournals at Digital Repository @ Maurer Law. It has been accepted forinclusion in Indiana Law Journal by an authorized administrator of DigitalRepository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationElliott, Byron K. (1935) "Clauses Excluding Aviation Injury and Death as Risks Not Assumed in Life or Accident Insurance Policy,"Indiana Law Journal: Vol. 10: Iss. 5, Article 2.Available at: http://www.repository.law.indiana.edu/ilj/vol10/iss5/2INDIANA LAW JOURNALVIIFrom this brief sketch of the subject, it is apparent that there is agreat deal of confusion in the decided cases. From a logical standpoint thewhole doctrine seems to lack support. The chief weakness of the doctrineis that it is contrary to the established theory of damages that of compensa-tion to the injured person. However, from a legal standpoint the doctrineis well fixed in practically all of the states. While many courts have followedthe doctrine more because of precedent than anything else, it neverthelessappears to be a doctrine so well established that it will not readily be doneaway with. In fact, it is so well established that some courts refuse alto-gether to discuss it from a logical standpoint, but decide the case on prece-dent alone.0 7 On the other hand there are opinions in which the doctrine hasbeen ridiculed. But even in these cases, the courts have still followed therule of precedent in the end. Our Indiana courts have several times disagreedwith the whole doctrine; and possibly this attitude has been one reason forour unusual rule where the wrong involved is also a crime.6 8As a practical matter, however, the allowance of this type of damageoften times may not be so serious. Take for instance the unlimited powerof the jury in assessing damages for injuries to the feelings and otherlosses not strictly pecuniary in character. The Indiana court has time andagain allowed recovery for these; and since they are often indefinite, thejury has unlimited power in assessing them. 9 A Wisconsin case willillustrate that exemplary damages may not always be unjust.70 The casewas tried in the lower court three times; at two of the trials the jury wasinstructed that exemplary damages could be allowed. At the other trial,they were instructed no exemplary damages could be allowed, but that theymight allow an amount for wounded feelings. The significant thing is thatthe jury returned the same verdict in all three cases. It is just human naturethat juries do such things.It must be admitted that there are strong arguments either for or againstthe doctrine. In fact, a wealth of material is available for either position.But in spite of all arguments, the doctrine has survived and, in conclusion,we must concede that the doctrine will continue to remain a fixed part ofour substantive law.CLAUSES EXCLUDING AVIATION INJURY AND DEATH ASRISKS NOT ASSUMED IN LIFE OR ACCIDENTINSURANCE POLICYBYRON K. ELLIOTT*The risk of death or injury from aeronautics, like the risk incident tounderwater navigation, was for many years too indeterminable and costlyto be included in the average life, health or accident insurance policy at theregular premiums. Therefore, many insurance companies sought to exclude67 Day v. Woodworth, 13 How. (U. S.) 371.68 Western Union Telegraph Co. v. Bierhaus, 8 Lid. App. 563.69 Moyer v. Gordon, 113 Ind. 282. This case involved an action for forcible entry.The court held that no exemplary damages could be recovered, but that the jury mighttake into consideration the bodily and mental suffering, injury to pride and socialposition and the shame and humilitiation at having his wife and family turned out instreet. See also Nossaman v. Rickert, 18 Ind. 350.70 Bass v. Railway Co., 36 Wis. 450, 39 Wis. 636, 42 Wis. 654.* General Solicitor, John Hancock Mutual Life Insurance Company, Boston, Mass.AVIATION INJURY AND DEATH RISKSit from the coverage of their contracts, and frequently made use of a clausesomewhat as follows:"No benefit shall be payable under this policy for injury or death whileinsured is engaged in aeronautic or submarine operations."As aviation developed and travel by regularly established airlines becamea common experience, the courts supplied authorities construing these olderclauses. New phraseology followed to meet the new conditions and thedecisions on the older forms. A later and widely used clause today is thefollowing:"Death as a result of service, travel or flight in any species of aircraft,except as a fare-paying passenger, is a risk not assumed under this policy;but if the insured shall die as a result, directly or indirectly, of such service,travel or flight, the company will pay to the beneficiary the reserve on thispolicy."Under the varying phraseology used to indicate that death or injury froman aviation accident was not a risk covered by the policy, it becomes materialto ascertain the exact facts surrounding the accident. The object of theflight, the part taken in it by the insured and the manner of injury are allto be considered. For this reason, it is more convenient to classify theauthorities by the circumstances surrounding the injury than it is to groupthem under any particular phraseology contained in a policy.I. Crash Instances-PassengersThe most familiar distinction is that between "engaging in" aviation activi-ties and "participating" therein. The courts have frequently held that apassenger who does nothing towards operating the plane is not "engaged in"aviation or aeronautics or aeronautic operations or expeditions, although hemay be "participating in" some form of aeronautics.The Indiana Supreme Court has had such a case before it. In MasonicAccident Insurance Company v. Jackson' an accident insurance policy con-tained, in part, the following clause:"Indemnity under this policy shall not be payable for any death ordisability that may be caused or contributed to, wholly or in part by anyof the following causes: * * while engaged in aviation or balloon-ing * * *"The insured, passenger in an airplane, was killed in a crash. The courtfound no error in overruling a demurrer to the complaint, saying:"Thus it may be observed that the phrase 'engaged in aviation' denotesand suggests permanency, or continuity, or frequency of action, and does notaptly describe a single isolated act of riding in an airplane as a passenger."The United States Circuit Court of Appeals for the Eighth Circuit, inGoldsmith v. New York Life2 reviews the various authorities and comesto the following "fairly definite conclusions" upon clauses which seek toexclude aviation deaths:"(1) The words, 'participating as a passenger or otherwise in aeron-autics or aviation,' 'participating as a passenger or otherwise in aeronauticactivity,' or 'participating as a passenger or otherwise in aeronautic expedi-tions,' cover a passenger in an airplane."(2) The words, 'engaged in aviation or aeronautics,' 'engaged in aero-nautic operations,' 'engaged in aeronautic activity,' or 'engaged in aeronauticexpeditions,' do not cover the ordinary passenger in an airplane."1 (1929) 200 Ind. 472, 164 N. E. 628, 61 A. L. R. 840.2 (1934) 69 F. (2d) 273.INDIANA LAW JOURNALThe court bad before it a clause excepting from the double indemnitybenefit death resulting "from engaging as a passenger or otherwise, in sub-marine or aeronautic expeditions." The company paid the face of thepolicy, and was freed from liability for double indemnity (accidental deathbenefit), the court saying:"While both the word 'participate' and the word 'engage' mean, amongother things, to take part in, it is held that 'engage' is ordinarily understoodto refer to an occupation or employment or continued activity, so that, inreading a policy which denied coverage to one engaged in aeronautics, itmight properly be construed as not excluding a mere casual passenger in anairplane, but as referring to one who made aeronautics his vocation or tooksome active part in the operation of the plane. It cannot be denied, however,that one may temporarily engage in taking a short trip or in writing a letteror in casual conversation, so that the meaning or scope of the word 'engaged'may be made entirely clear by its association with other words."The following brief reference to other cases shows in quotations the pointof the exclusion clause involved in the decision, and indicates the court'sholding:Padgett v. Metropolitan Life3 "that death shall not have resulted frombodily injuries sustained while participating in aviation or aeronautics, exceptas a fare-paying passenger * * *." Double indemnity denied on policyof insured who paid no fare to ride with his employer who held a privatepilot's license not authorizing transportation for hire.First National Bank of Chattanooga v. Phoenix Mutual4 : "directly orindirectly, wholly or partly, * * * from participation in aeronautic* * * operations." Double indemnity denied on policy of president ofaircraft company who, against advice of a licensed pilot his companyregularly employed, directed that trip be made so he could see sick wife.Insured had interposed his own judgment.Head v. New York Life:5 "participation as a passenger or otherwisein aviation or aeronautics." Passenger, with pilot, has a part in flying inthe air and is participating.Provident Trust Co. v. Equitable Life Assurance Society:6 "if deathshall * * * be the result of or be caused directly or indirectly by* * * engaging as a passenger or otherwise in * * * aeronauticexpeditions." Double indemnity awarded oi policy of fare-paying passengeron regularly scheduled flight.Missouri State Life v. Martin :7 "participation in aviation or submarineoperations." Double indemnity allowed where insured, as invited guest offriend, was on his first flight. On rehearing, the court rejected differencebetween "engaged" and "participation," emphasizing the word "operations."Martin v. Mutual Life Insurance Co. of New York:8 Same accidentas Missouri State v. Martin. "Participation in aeronautics." Invited guestentitled to double indemnity, court declining distinction between "participate"and "engage."Gibbs v. Equitable Life Assurance Society:" "engaging as a passengeror otherwise in submarine or aeronautic expeditions." Court thought that3 (N. C., 1934) 173 S. E. 903.4 (U. S. S. C. A., 6th Circ., 1933) 62 Fed. (2d) 681.5 (1930, U. S. C. C. A., 10th Circ.) 43 Fed. (2d) 517.6 (Pa., 1934) 172 A. 701.7 (Ark., 1934) 69 S. W. (2d) 1081.8 (Ark., 1934) 71 S. W. (2d) 694.9 (1931) 256 N. Y. 208, 176 N. E. 144, reversing 246 N. Y. S. 560.AVIATION INJURY AND DEATH RISKSNvhen policy was issued in 1924, all air trips were considered expeditions, anddenied recovery.Flanders v. Benefit Association of Railway Employees :10 "while engagedin aeronautics." Passenger in ship piloted by friend. "Engaged" held tomean more than a single trip and recovery allowed."II. Propeller and Other Accidents Before or After FlightWith immense crowds gathering at airports and hundreds of thousandsof people flying, it is not surprising to find injuries resulting from contactwith the propeller or another part of the ship while it is on the ground.Such an accident could hardly be excluded by the usual clauses unless itconstituted some step incident to use of the ship.In Blonski v. Bankers Life Co. 12 the insured, preparing to take a flightas a passenger, is injured when he steps up and spins the propeller. Hisdisability benefits are not payable for injury while "engaging or participatingas a passenger or otherwise in aviation or aeronautics." The court held hisacts to be within this clause.In Murphy v. Union Indemnity Company 13 an accident policy exceptedinjuries while "in or on any vehicle * * * for aerial navigation." Re-covery was denied where insured was struck by a revolving propeller whileattempting to board a seaplane.Insured was part owner of the airplane involved in Pittman v. LamarLife Insurance Co.' 4 He alighted from the plane and walked into the pro-peller. His death was held to have occurred "while participating or as aresult of participation in any submarine or aeronautic expedition or activity,either as a passenger or otherwise * * *," the court saying:"The term 'aeronautic activity' is broad enough to cover what is ordinarilyincident to an airplane trip. The aeronautic activities of one who takes sucha trip do not begin or end with the actual flight, but include his presence ormovements in or near to the machine incidental to beginning or concludingthe trip."A passenger, in Tierney v. Accidental Life Ins. Co. 15 stepped from theship into the propeller. The California Supreme Court here held the com-pany liable, although the policy covered no injury received "while participat-ing or in consequence of having participated in aeronautics."Motor trouble forced down the seaplane, involved in Wendorff v. MissouriState Life Ins. Co. 16 but no one appeared to be injured until it capsized.Thereafter insured was found dead in the water, his head displaying signsof some injury. The court held the death not covered by an accident policywhich excluded injuries sustained "while in or on any vehicle or mechanicaldevice for aerial navigation, or in falling therefrom or therewith * * *"Citing Meredith v. Business Men's Accident Association. 1710 (1931) 226 Mo. App. 143, 42 S. W. (2d) 973.11 For other cases see Benefit Association of Railway Employees v. Hayden, (1927)175 Ark. 565, 299 S. W. 995, 57 A. L. R. 622, "while engaged in aeronautics or under-water navigation," recovery allowed; Bew v. Travelers Insurance Co., (1921) 95 N. J.Law 533, 112 A. 859, 14 A. L. R. 983, "while participating in or in consequence ofhaving participated in," no liability. (A leading case.)12 (1932) 209 Wis. 5, 243 N. W. 410.13 (La., 1931) 134 So. 256.14 (C. C. A. 5, 1927) 17 F. (2d) 370.15 (1928) 265 Pac. 400.16 (Mo., 1927) 1 S. V. (2d) 99.'7 213 Mo. App. 688, 252 S. W. 976.INDIANA LAW JOURNALAn insured passenger leaped from the plane which had scarcely left theground, in Gits v. New York Life. s He was granted his double indemnityalthough his clause excepted death from "engaging in submarine or aeronauticoperations."III. Accidents to PilotsThe pilot is both engaging and participating in aeronautics. This isequally true of an individual operating a glider. In Irwin v. PrudentialInsurance Co.19 the insured, pilot and sole occupant of a glider, was heldto be engaged in aviation operations.In several instances, a pilot has sought an advantage from the "in timeof war" phrase. He obtained it in Charette v. Prudential Insurance Co.20where his double indemnity clause excluded death as a result of "havingbeen engaged in aviation or submarine operations or in military or in navalservices in time of war."21IV. Miscellaneous DecisionsLouisiana does not recognize an aviation exclusion clause, holding it tobe in conflict with the incontestable clause and statute.22 Other states haveheld to the contrary. 23An airplane is not a "motor drawn car" within the purview of an accidentpolicy listing a series of conveyances.2 4 Nor is a ship taking individuals upfor short hops "a public conveyance provided by a common carrier," in thesame sort of policy listing a series of conveyances. 25 But a corporationproviding regular flying service is a common carrier. 26RECOVERY FOR TORTS BETWEEN SPOUSESBy DONALD J. FARAGE*Effect of the Marital Status on Contracts and Crimes at Common LawA brief survey of the legal attributes surrounding the spouses at commonlaw may be helpful in discussing present problems involving the maritalstatus. One very soon learns that many of the difficulties and concepts whichhave a role in the field of contracts and crimes, where marital status isinvolved, also appears prominently in the tort field.The early concept that, "upon marriage, a man and woman merged, inlegal contemplation, and became one, that one being the husband" was so18 (C. C. A. 7, 1929) 32 F. (2d) 7.10 (1933) 5 Fed. Supp. 382.20 (1930) 202 Wis. 470, 232 N. W. 848.21 Accord, Peters v. Prudential Insurance Co., (1929) 133 Misc. 780, 233 N. Y. S.500. Contrary results, on this point, were reached in Taylor v. Prudential InsuranceCo., (1931) 253 N. Y. S. 55, and Price v. Prudential Insurance Co., (1929) 98 Fla.1044, 124 So. 817.22 Leidenger (Bernier) v. Pacific Mutual, (1932) 139 So. 629.23 Pacific Mutual v. Fishback, (Wash., 1933) 17 Pac. (2d) 841; American HomeFoundation v. Canada Life, (1931) 260 N. Y. S. 106 (citing Metropolitan v. Conway,(1930) 252 N. Y. 449, 169 N. E. 642, leading case on the point).24Monroe's Admr. v. Federal Union Life, (Ky., 1933) 65 S. W. (2d) 680.25 North American Acc. Ins. Co. v. Pitts., (1925) 213 Ala. 102, 104 So. 21; Brownv. Pacific Mutual, (C. C. C. 5, 1925) 8 F. (2d) 996.20 Curtis-Wright Flying Service v. Glose, (C. C. A. 3, 1933) 66 Fed. (2d) 710.* Professor of law, Dickinson Law School.

Clauses Excluding Aviation Injury and Death as Risks Not Assumed in Life or Accident Insurance Policy

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Clauses Excluding Aviation Injury and Death as Risks Not Assumed in Life or Accident Insurance Policy

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