We conclude, therefor, that to comply with the express terms of subsection (2) of clause 3, in this case Philadelphia would have had to be listed as the Point of Departure on the new tickets on exchange.
The refinements over time in airline trip insurance leading to the present policy can be traced by reference to court decisions. See, Thomas v. Continental Casualty Company, 225 F.2d 798 (10th Cir. 1955); Fidelity and Casualty Co. of New York v. Smith, 189 F.2d 315 (10th Cir. 1951); Rosen v. Fidelity and Casualty Co. of New York, 162 F. Supp. 211 (E.D. Pa. 1958).
The ticketing requirements set out above have resulted in judgments for the insurers in recent cases, involving materially similar air line trip insurance, when the insureds died on airline flights, not part of their originally ticketed trip, and where no exchange of tickets took place. Mack v. Commercial Insurance Company of Newark, New Jersey, Case No. 3834 (Court of Appeals, Fifth District, Stark County, Ohio; filed May 1, 1973), cert. den. No. 73-541 (Supreme Court of the State of Ohio; Sept. 14, 1973); Roberts v. Fidelity and Casualty Company of New York, 452 F.2d 981 (9th Cir. 1971); First Nat. Bank of Chicago v. Fidelity and Cas. Co. of N.Y., 428 F.2d 499 (7th Cir. 1970), cert. den. 401 U.S. 912, 91 S. Ct. 878, 27 L. Ed. 2d 811 (1971). Indeed, both the Mack and Roberts cases involved Los Angeles Airways on flights between Los Angeles International Airport and Anaheim/Disneyland.
None of these cases, however, have been faced with the issue presented in this case as presented above.
There are no precise Pennsylvania precedents so we, as if a court of the state, must make a determination of what the Pennsylvania Supreme Court would probably rule in a similar case. In order to make this determination, we turn to principle, precedent, and the contemporary jurisprudential philosophy of the Pennsylvania Court. In Re Royal Electrotype Corporation, 485 F.2d 394, 396 (3d Cir. 1973).
Although there are no precise Pennsylvania precedents, we believe that a judge of this court has already correctly predicted what the Pennsylvania Supreme Court would do in this case. Rosen v. Fidelity and Casualty Co. of New York, supra.
In Rosen, the late Judge Kirkpatrick held that the exchange provisions of a policy would not avoid liability on a policy. Rosen referred to the decision in Fidelity and Casualty Co. of New York v. Smith, supra, where the failure to exchange, in a situation where the court found it impracticable to do so, did not avoid liability. The court in Smith reached that result by construing the policy so that exchange was not an absolute condition. Judge Kirkpatrick faced with a policy, such as here, where the exchange provisions are obviously absolute conditions also held that the plaintiff could recover where compliance with the exchange provisions was impossible.
We agree with the result reached by Judge Kirkpatrick.
We have found that it would have been impossible for the insureds to exchange their tickets as required by the literal terms of clause 3. The plaintiff has presented direct evidence with respect to Los Angeles Airways' and United Air Lines' ticket exchange procedures and those of associated airlines. We find this evidence adequate to support a finding of impossibility.
Generally, we believe that the rule of insurance law that conditions which are impossible of performance are ineffectual and void, Strauther v. General American Life Insurance Co., 141 S.W. 2d 128, 130 (1940); 7 Couch, Insurance 2d § 36.49 (1961), is adequate to dispose of this case. It appears that the defendants do not seriously contest this proposition but rather rest their case on their most recent interpretation of the policy. However, since, as we interpret the policy, compliance with subsection (2) of clause 3 was impossible, we shall analyze this case as we believe the Pennsylvania Supreme Court would.
The general approach is that an insurance policy will not be rewritten but will be given a reasonable interpretation in light of the subject matter and situation of the parties when the contract was made. Tennant v. Hartford Steam Boiler Inspection & Ins. Co., 351 Pa. 102, 107-108, 40 A.2d 385, 387 (1944); Janney v. Scranton Life Ins. Co., 315 Pa. 200, 203, 173 A. 819, 820 (1934). This approach is sufficiently flexible that conditions manifestly contrary to public policy, such as those requiring the insured to do an impossible act, will be disregarded and the policy applied to effectuate the dominant permissible intent of the parties. The approach of the Pennsylvania Supreme Court to such a condition was articulated long ago.
"In considering this question we must take a reasonable view of the contract. It was evidently one of indemnity. It was for this the plaintiff contracted, and we would not do the company the injustice even to suggest that it had not the same end in view . . . ."
. . . "It will thus be seen that where the reason of a condition does not apply this court has refused to apply it . . . . We are not to suppose that conditions involving forfeitures are introduced into policies by insurance companies, which are purely arbitrary and without reason, merely as a trap to the assured or as a means of escape for the company in case of loss. When therefore a general condition has no application to a particular policy; where the reason which alone gives it force is out of the case, the condition itself drops out with it." . . .