The opinion of the court was delivered by: MCVICAR
This is an action to recover double indemnity on five policies of life insurance aggregating $17,500. At the trial, plaintiff and defendant each made a request for binding instructions. The request of the plaintiff was refused; the request of the defendant was granted. The case is now before us on plaintiff's motion for a new trial. Where both parties request a directed verdict, the court must decide the issue or issues of fact and the issue or issues of law. Beuttell v. Magone, 157 U.S. 154, 157, 158, 15 S. Ct. 566, 39 L. Ed. 654.
Stanley W. Bayersdorfer took out five policies of life insurance of the defendant company. The policy issued by it in 1925 contained the following provision relative to double indemnity: "The provision for double indemnity benefit * * * will not apply if the insured's death resulted * * * from engaging as a passenger or otherwise, in * * * aeronautic operations." The four other policies had double indemnity provisions which were contained in the original policies or which were added thereto by riders issued in 1929 and 1931. These four policies contained the following provision relative to double indemnity: "This double indemnity shall not be payable if the insured's death resulted * * * from participation as a passenger or otherwise in aviation or aeronautics."
The insured was killed April 7, 1936, by the crash of a plane in which he was a fare-paying passenger, which plane belonged to the Transcontinental & Western Air, Inc., and at the time of the accident was engaged on a regularly scheduled flight between Newark, N.J., and Pittsburgh, Pa. Defendant paid to plaintiff the amount of insurance covered by the aforesaid policies, which payment did not include double indemnity. The plaintiff, the beneficiary, who is trustee for the widow and children of the insured, brought this action.
The question involved is as stated in the brief of plaintiff's counsel: "Did the said Stanley W. Bayersdorfer's accidental death result from engaging as a passenger or otherwise, in submarine or aeronautic operations?"
The interpretation of a life insurance policy is a question of general commercial law. Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865; Equitable Life Assurance Society v. Nikolopulos, 86 F.2d 12, 14 (C.C.A.3).
Where provisions in a policy are ambiguous, they should be construed most favorably to the insured. Stipcich v. Metropolitan Life Insurance Company, 277 U.S. 311, 48 S. Ct. 512, 72 L. Ed. 895; United States Fidelity & Guaranty Company v. Guenther, 281 U.S. 34, 50 S. Ct. 165, 74 L. Ed. 683, 72 A.L.R. 1064. Where an insurance contract is not ambiguous, it must be construed in accordance with its plain terms. Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 52 S. Ct. 230, 76 L. Ed. 416.
The precise question now under consideration has been determined by three courts in favor of the defendant: Goldsmith v. New York Life Ins. Co., 69 F.2d 273, 275 (C.C.A.8); Mayer v. New York Life Ins. Co., 74 F.2d 118, 99 A.L.R. 155 (C.C.A.6); and by the United States District Court for the Northern District of Illinois in an opinion by Woodward, D.J., handed down June 3, 1937, in the case of Christen v. New York Life Ins. Co., 19 F.Supp. 440.
In the case of Goldsmith v. New York Life Ins. Co., supra, the court, speaking by Sanborn, J., said:
"From the foregoing cases, at least two fairly definite conclusions can be drawn:
"(1) The words, 'participating as a passenger or otherwise in aeronautics or aviation,' 'participating as a passenger or otherwise in aeronautic activity,' or 'participating as a passenger or otherwise in aeronautic expeditions,' cover a passenger in an airplane.
"(2) The words, 'engaged in aviation or aeronautics,' 'engaged in aeronautic operations,' 'engaged in aeronautic activity,' or 'engaged in aeronautic expeditions,' do not cover the ordinary passenger in an airplane.
"While both the word 'participate' and the word 'engage' mean, among other things, to take part in, it is held that 'engage' is ordinarily understood to refer to an occupation or employment or continued activity, so that, in reading a policy which denied coverage to one engaged in aeronautics, it might properly be construed as not excluding a mere casual passenger in an airplane, but as referring to one who made aeronautics his vocation or took some 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 ...