*1 personal testimony he had no plaintiff of was that fore. The ig- and simply operator, knowledge but machinery, of said machine. of construction norant details Virtually this court all like character decided of cases of are appeals, many jurisdictions, other and courts of and .the experts of opinion. testimony oth- There was referred operation possibility of the knife under the cir- ers as to the plaintiff, and evidence case of a cumstances described inspection of lack care of in the the machine. view defendant occurrence, attending it, the nature of the the circumstances applied. held that the rule application 'Our rule is conclusion is warranted at bar. case excessive, is no There contention that the verdict nor other as- signment error, judgment is affirmed. Seddon and Ellison, GG., concur. CURIAM,: PEE foregoing opinion by Lindsay, C., adopt- opinion
ed judges the court. All of the concur. Gladys D. Administrator of Estate T. Bulte, John Wendorff, Company Appellant, State Life Missouri Insurance (2d) 1 S. W. 99. One,
Division December 1927. *2 appellant.
John D. Wendorff *3 English Jourdan & and McAllister, Humphrey & respond- Pew for ent. policy. plain-
ELLISON, C. This is a suit on an accident On the County gave peremptory tiff’s Circuit Court evidence Jackson plaintiff appealed. He as ad- for defendant sues instruction Gladys policy was issued ministrator of T. deceased. Bulte, against respondent August Bulte, insuring him husband, J. her bodily accidental sum due of death injury, death event payable the wife. Among obligated respondent conditions, policy . other *4 pay indemnity resulting bodily $10,000 an of for loss of life injuries directly all independently other causes effected sole- provided ly thrQugh means, ninety within accidental death follow single days. requirement hereinafter in- This is referred to as the demnity provision policy. clause, was still another the There injuries not follows: “The hereunder shall cover fatal insurance by . . . the Insured . . while in non-fatal, or . sustained navigation, any aerial or in or mechanical device for or vehicle handling operating any or falling while or therewith therefrom such vehicle or device.” ,met Miami, passenger a en route from his while
The insured death Islands, on an aircraft of a type in Bahama Florida, Bimini to the engine ’plane forced seaplane. trouble a the called Because by capsized alight shortly thereafter was the waves. at sea body of the insured seen float- few later lifeless A minutes the ing by. in the close water foregoing facts the a appellant proof made
The contends the drowning, upon which by the prima-facie death case of accidental
367 cause should jury. respondent have been submitted to the The appellant’s showing recovery precluded by maintains that on own “flying the policy. appellant clause” that re- machine of the To joins application (1) provision the clause has no because: re- only injuries (2) actually flying air; fers in the sustained while seaplane flying machine, was not a but a boat or vessel at the (3) controversy; time and under in in- the facts involved this injured falling in sured was not either machine or there- while drowning. from, but lost his life undisputed,
As the are facts the case turns on the construction given casualty policy. opinion to be are of the that came We stipulated exception within trial and that the conclusion of the understanding ruling right; proper court was but for a of the necessary fully both it courts to set out the evidence more before discussing legal questions.
Only testified, L. one witness Robert Moore. He was the owner seaplane flight. experienced and aviator on fatal was an He pilot, air and had served with distinction combatant forces during partner World War. With a a commercial he conducted Islands, air line between Miami and the under the name Bahama Airways. seaplane figured Miami which -The the accident bore the name Miss Miami. It was the Curtis constructed corporation speed Buffalo, York, New and held the record from' Miami. with a hull a New York to craft constructed like The including pilot. boat, passengers, and carried six long, feet wings Liberty spread powered was 76 It was with a feet. propeller. and air motor necessary air ’plane into the it was for
To enable the to mount speed leaving gathering to run before water. some distance light water. To this flight a it would on the at the end of Likewise furnishing quarters passengers, the hull was extent, as well as taking In same part flying equipment. off, essential way) im- (and in the same engine propeller were used and air drawing' velocity employed in necessary that were part initial engine slowly By running more through, the air. the vehicle along rising. water without made to move the craft could be “taxiing.” possible use the way it was This.was called ’plane several a witness referred to boat. The like designed worthy boat, to meet and times as a boat—said it “was employed ma- sea;” it “was all at stand conditions *5 ‘‘ a you like; it was combination sea- and that boat, chine or as a by manipulation that further said plane, both air and water.” He they be made to plane, could hinged winged the surfaces compelled had been when he sails, and occasion that, serve on one sea, by landing had, he that means and skillful to make a forced at twenty sail into the harbor Nassau. navigation, to miles been able morning Bimini of March to trip For the Miami by Bulte, Mr. the in- insured, Miss Miami was chartered Mr. Smith and a Miss Dixon. The testate, M¡rs. Bulte, a and Mrs. a miles; flying time little over minutes. The distance is 52 landing trip by and air without intermediate ex- is sea is made over particular On this occasion cept of mechanical trouble. case straight through Bimini but for flight have continued to motor would down; forced the developed which en route and trouble language story flight best told in the of the witness: is but “ n Weleft the 11:50 11:04 the clock. At motor trouble water at warning giving absolutely whatsoever, no motor was developed, just a having passed a schooner few minutes absolutely dead, be- signaled him captain; I I was I to know the all fore, happened and sometime-, wings. my port by moving quite I had seen right only eight and a half to I said before, it was miles Bimini. As volplane obliged landing, I to down. developed trouble and was difficult, very condition, landing very hard the extreme as the was eight feet, to raging approximately at this time from six ten sea gulf high -were, every as in the streams third waves wave feet some largest, by coming wave, managed I a in the drive to make breaking high, entirely landing-; the were decent waves sometimes taking in little each water. machine, over time “By taking placing carried in the hull and the motor cover over run over and not passengers so water would the hatch covers run thought I would me to cock-pit, into enable devote some huge wing hit to A wave the machine caus- time the trouble. right naturally filling ing side, list the extreme the boat to acting being top cock-pit water, pivot, as a the motor and full pivot completely heavy, it and turned over. When I top acted as my managed way I cover, up find feel- came out of the hatch ing, to the surface. wing deft and Mrs.
“I Bulte within a few feet noticed Mrs. feet, fifty three, Mr. Smith a hundred feet and perhaps Smith I up first pulled swim. Mrs. Bulte was the none could apparently Sinith was next Mr. followed. This wreckage, Mrs. Smith on the and inquired'about husband, her Mrs. Bulte boat. the keel ‘My my God, husband.’ I assured them remarked,’ where she things of this right and not to that kind everything worry, all nothing and we would be it was unusual happened often cockpit shortly. I into the tried locate picked dived up Bulte, appear bodies didn’t those two of Miss Dixon bodies M^. nearly water, up, being when I exhausted came on the surface dive, but the bodies were and made another I a few minutes rested any place. found not
369 “At particular this blowing I rope wing time noticed a and the swung when it around and I back, rope came tied the the keel of machine; the there on the brace keel of the machine about the space of you two your finger in, inches by running can stick and end rope through managed I that, position, to secure it that I wreckage. partic- tied Mrs. Smith and Mrs. Bulte on the At this ular time I body floating by; noticed I Bulte’s come stood front body. of the two ladies obstruct their view of I watched the body until it at least past. was one hundred . . feet .1 noticed body bleeding head, directly at the seemed to be a scar over right eye, body air, was tossed into the fact was so it close nearly it hit the machine. by narrating harrowing witness continued details of the struggles remaining shipwrecked party members midnight. told of the death of Mrs. Smith and Mrs. about Bulte This repeated. point need not be It be stated, however, should that at one passengers injured he making said none of the were the forced landing, everyone good spirits jolly be in that seemed to until said, also, the boat turned He that was over. it about ten minutes capsized, from the water time the boat came down until and about the same time when Mr. thereafter he saw Bulte’s remains. sufficiently This, think, we reviews the evidence. Taking points order, up appellant
I. made their we proof prima-facie agree involuntary drowning case of made indemnity policy; single provision of the accidental death under the trae, particular provision, no mat and this is far as so concerns falling in the water. what the cause insured’s
ter 798; Casualty 240 S. Manu Co., W. v. Met. Ins. [Kahn Indemnity Dorgan, 954, 7 58 Fed. C. C. Co. v. facturers’ 581, Ed.) (2 620; 22 sec. Joyce 5 on Law Insurance A. L. R. A. 4914; 5019-21; p. p. 2881, sec. 2833, p. 4906; p. 2880, sec. 2837, sec. 5021.] invoked the mooted respondent
Against prima-facie case, an affirmative thus tendered machine clause. The defense respondent defense, and, appellant says, the burden 461, 235 290 Mo. Casualty Co., it. v. establish Continental [Griffith 97 596, 73 S. W. 174 83; Casualty Co., Mo. S. W. v. Fetter general rule furthermore, is, It Am. St. 61 L. R. A. 459.] taken cannot be plaintiff’s case circumstances that the such credibility jury pass on the jury, right have the for he has though testimony, weight their defendant’s witnesses and 479, 265 Mo. Co., Ry. A. C. & uneontroverted. v. [Peterson is docu proof "Whenthe exceptions. S. W. But the rule has its 182.] own evidential mentary, plaintiff’s on the defendant relies showing (or plaintiff true) which the admits to and the evidence point way, therefrom all one there is no issue of reasonable inferences jury. [Darlington fact to Co. Mo. be submitted to the Lumber *7 Ry. 243 1052; Pac. 147 S. Linderman v. Co., 245, Carmin, Mo. W. 614; 255 Mo. 164 182 W. 62, S. W. Warren v. N. Y. Life Ins. S. Co., 98; Richey 246, W. W., App. v. W. 163 Mo. 146 S. O. 461.] only questions
That was the situation in the instant case. The and admitted facts— whether, be determined were are under the appellant’s standpoint flying from machine with —the insured, meaning policy provision, in the of and if whether the so falling drowning, life floating craft and lost his in the contemplated by questions of clause. These were both manner policy, arising law on a construction of the and were to be determined Paving v. by jury. [Roach-Manigan Co. South court, not 121; (Mo. v. (Mo.), 238 W. Trimble Edwards western Ins. Co. S. deciding If correctly trial court ruled App.), 281 S. W. 122.] jury case; affirmative, if questions in there no but on both question ruling, it should have been sub so cause either erred prima-facie jury plaintiff’s of accidental mitted to case drown respondent’s that issue and the appellant for had burden ing, general denial. answer contained a policy, to be-followed are well of the the rules the construction unambiguous language Plain is contract. and policy The
settled.
a.
meaning.
should be
given its
The contract
construed
plain
be
must
constructions,
open to different
that most
whole; but
as
insofar
aas
Security
adopted.
be
rel.
insured must
ex
favorable to
[State
However,
267 S. W.
Allen,
seq.,
But the principle policies “that limits, the further proper within .of tion, insurance, like contracts, interpreta other must receive reasonable tion apparent object consonant with the plain par and intent of the ties.” R. L. p. C. sec. appellant respondent [14 Both 932.] principle invoke that here, Long Joseph cite St. Life Ins. Co. (Mo.), S. W. policy 923. liability in that case limited the against the insurer death “engaged any of the insured while ’’ military or naval service pneu time of war. The insured died of monia induced furlough influenza while at home on a after the Armistice, plaintiff recover, say held the court could ing: provision “That policy interpreted with must be an un derstanding general Against purpose of the contract. what contingencies did ? protect plain the insurer intend to It is itself it did not to except intend hazards, against from the which it under took insure, ordinary life, military risks of such risks at performance tended the any military duty kind of in circumstances peace. only It was excepted. hazards war that were *8 II. Now to make application concrete of the discussion thus far. The appellant peace military service, likens the hazards time which were ruled within navigation, in Long case, the risk to the hazards surface excepted in this: and the hazards of which in war. were Long ease, in On flight, to the hazards of air this. reasoning
this line
he reaches the conclusion that the
only
policy exception refers
to
in
air. But
accidents
agree
is a
analogous,
cannot
the situations are
or that such
fair
we
general
policy. Obviously,
purpose
of the
construction of
oecuring
exempt
liability
clause was to
from
for accidents
the insurer
extraordinary
hazards incident thereto
aeronautics because of the
(Meredith
978);
Assn.,
v.
252 S. W.
these hazards
Accident
opei’ation
flying
ap
air
are not
mere
seems
confined
many
parent
testimony
case,
tragic
in this
as well as from
very
history.
State ex inf. v. Dall
incidents
recent current
[See
Q.
Co.,
&
meyer,
1068;
245
v.
644,
295
S. W.
Allen C. B.
Railroad
Mo.
61,
313 Mo.
Furthermore, plain not alone clause its terms does juries navigating specifies injuries It sus suffered while the air. aerial navi my tained while in or on vehicle or mechanical device for therewith, gation, operating or to falling or or while or therefrom unequivocal handling any to the such vehicle. Unless we do violence must, language used, do, we we that it activities hold, as covers water, with or air the use ground, well as when connected flight seaplane taking off for a the machine in aeronautics. In a water, stop speed must a and to slow down attain certain on the parts indispensable light of the move on the water. are must These ment, Co., (2d) in- 17 370, In Pittman Lamar Life Ins. Fed.
sured, following an trip, airplane air descended from his walked around the front thereof toward his automobile. He was struck airplane propeller engaged and killed. It was held he was in “aero- ’’ ‘‘ activity. nautic The court said: The aeronautic activities of one who takes a trip begin such do flight, not or end with the actual but presence include his or movements near to machine incidental or beginning concluding or trip.” way, flight In if the same a interrupted by necessitating involuntary, mechanical an trouble or forced, landing, during supported by the interval which the craft is watery part a air, fly- element instead of the is as much ing trip any clearly opinion other. We are that the clause in controversy applies situation shown to aircraft have ex- isted in this case.
III. But it is said the was vessel and not ma chine at the accident, applica- time of the no and that the clause has
tion for that In connection attention is called reason. 3, 1, A., to Sec. Title U. which word S. C. the “the savs every description craft or artificial con- 'vessel’ includes of water transportation capable being used, as a means used, trivance United States and oth- water. This statute has held been widely types, different navigable er courts to structures of refer to enacted a code definition but it to be the definition is remembered legislative nearly every instance in which it has In purposes. question applied, discloses, immediate been so far as our research admiralty jurisdiction. involved was one of held air Fed. it was Crawford Bros. No. admiralty repairs under plane subject libel in rein for was not *9 Corporation, 232 N. Y. Flying Newport Service law. In Reinhardt v. naviga in seaplane 1324, was moored 371, 133 N. 18 A. L. R. a E. to waded out drag The claimant began to anchor. ble waters and craft, propeller. It was ruled the and was struck the rescue it sea,” and that the subject tribunals of the to “the afloat, while Compensation Workmen’s the York claim did under New not come admiralty is the jurisdiction of think court said: “We the Act. The where, aeroplane seaplane and afloat is found structure not less 242, 119 Misc. Supp. 196 N. Y. Smith, People combined.” a state within floating structure a was not seaplane a it decided any boat, barge, without a muffler forbidding operation statute internal by an combustion propelled floating structure or other vessel holding was later re State; but this engine, certain waters of on case. authority the Reinhardt Supp. 942, in N. Y. versed enforcement as such purposes, plain that for certain It' seems why a good reason is sea, there of the regulations laws harbor But does it rules. maritime seaplane subject should be to floating follow that such always a craft on wholly the water loses its charac- ter flying as a machine? We think A seaplane amphibious. not. is It can float and move on the primary water but its function is to navigate admiralty the air. If may disregard this latter function in dealing with the bringing’ range machine on facts it of that wflthin jurisdiction, may why regarded it not also be as air vehicle "when being used as though such, afloat, if aspect of its dual is nature involved? An policy, insurance not a is to be looked statute, this purpose case. The policy provision is evident. The craft was a navigátion. “mechanical for device aerial it We cannot hold any the less that because forced down water at the time of the accident.
IV. The final appellant contention of is that the insured was not injured either falling while or therefrom but met his death drowning. already it observed, necessary As if were only single indemnity provision policy consult that conten founded, regard
tion law would be for well would drowning the”efficient,predominant cause of death. But specifically injur subsequent excepts a accidental clause falling non-fatal, from machine aerial ies, sustained fatal or airplane ground from an navigation. If insured had fallen provision hardly applicability would be killed, and been plane regard whether the without questioned, ending flight. beginning rolling ground at or along air equally binding wrhy exception should not can no reason We see the one case ultimate cause death facts here. The under the crushing, drowning; but both would result in the other would be case—falling from a machine. producing from the same judgment Lindsay below. to affirmance of views lead These Smddon, CG., concur. by Ellison, C., adopted opinion The foregoing PER CURIAM: judges concur. All of the court. opinion City E. v. A. Appellant, Bridge Company, & Transit Jefferson W. 778. 300 S. the Revenue. Collector of Blaser, *10 One, 1927.
Division December