The opinion of the court was delivered by: MCGRANERY
This matter is before the Court on a motion for summary judgment by the defendant.
The facts briefly are that defendant, New York Life Insurance Company, a corporation of the State of New York, issued, on July 9, 1943, a policy of life insurance in the face amount of $ 50,000 to the insured, David Grimes, a resident of this district. Prior to the date of the insured's death, there had been paid one premium in the amount of $ 5,627.00. The policy provided that when it became a death claim it would be payable to the defendant company as trustee under two separate trust agreements, with the insured's widow, the plaintiff, Cecyl H. Grimes, as the first beneficiary; but if the total proceeds amounted to less than $ 6,000, then the whole sum was to be paid to the first beneficiary, if living.
The insured, David Grimes, was vice-president in charge of engineering for the Philco Corporation. The corporation and the Navy Department of the United States entered into a contract whereby Philco Corporation was to furnish the services of one hundred skilled radio-radar engineers who were to act as advisers concerning airborne equipment at places designated by the government contracting officer. In consideration of Philco Corporation furnishing these engineers and services, the government agreed to pay the Philco Corporation up to $ 755,366 computed on a basis of $ 694.17 a month per engineer, plus an average of $ 250.00 a month per engineer for actual transportation costs and $ 5.00 a day per engineer during the period of such engineer's assignment to duties outside the United States.
It was under this contract that the services of Mr. Grimes were made available by the Philco corporation to the United States Navy, which directed him to proceed to London 'by commercial and/or government aircraft'. On September 4, 1943 he arrived at the Naval Operating Base, Londonderry, located in Northern Ireland, and requested transportation to London. That day Commodore James A. Logan, the commanding officer of the base, had planned to fly to London for a conference there with Admiral Stark. The flight was arranged for by the United States Army, and an Army plane was sent to Eglington Field, North Ireland, from Hendon Field in England for that purpose. The route of the flight was to be from Eglington Field to Hendon, England, via Langford Lodge, Ronaldsway, Rhyl and Droitwich.
The insured requested and received official permission to accompany Commodore Logan on the flight. At the time Eglington Field and Hendon Field were both airfields under military control. The plane used for the flight had the Army designation UC-78, it being a two-motor transport type plane with seats for pilot and co-pilot and a rear seat for two or three passengers. It was piloted by an Army Air Forces Captain and had been assigned by the Army to the 86th Air Transport Squadron 27th Air Transport Group, 8th Air Forces Strategic Command.
The plane carrying the Commodore and the insured as passengers took off from Eglington Field at about 2:30 P.M. on September 4, 1943 and at approximately 2:48 P.M. that day it crashed into the side of a mountain. In this crash the insured, David Grimes, went to his death.
On or about October 1, 1943, proofs of death were filed by plaintiffs. On June 20, 1944 the defendant insurance company tendered to the plaintiff Cecyl H. Grimes, widow of the insured, the sum of $ 5,786.73 as the restricted amount due under the policy. The tender was refused and suit commenced to compel payment of the full fact amount under the terms of the policy.
The issues are raised by the language contained in the policy:
'The only amount payable under this Policy shall be restricted amount hereinafter defined if the death of the Insured shall occur * * *
'or (3) as a result of operating or riding in any kind of aircraft, whether as a passenger or otherwise, other than as a fare-paying passenger of a commercial airline and flying on a regular scheduled route between definitely established airports;
or (4) within two years from the date of the issue of this Policy as a result of war, provided the cause of death occurs while the Insured is outside the Home Areas and the Insured dies either outside the Hone Areas or within six months after returning to the Home Areas.'
The 'restricted amount' is defined to be: ' * * * a sum equal to the premiums which shall have fallen due hereunder prior to the date of death of the Insured and been paid to and received by the Company, together with compound interest at the rate of three per cent per annum * * * .'
The issues here involved, therefore, are: Did the insured meet his death while riding in an aircraft otherwise than 'as a fare-paying passenger of a commercial airline and flying on a regularly scheduled route between definitely established airports', and did his ...