Mary G. BRUCE, Administratrix of The Estate of Walter B. Bruce, Deceased, Appellant, v. Lumbermens Mutual Casualty Company, A Corporation, Appellee
Uploaded by
Scribd Government DocsMary G. BRUCE, Administratrix of The Estate of Walter B. Bruce, Deceased, Appellant, v. Lumbermens Mutual Casualty Company, A Corporation, Appellee
Uploaded by
Scribd Government Docs222 F.
2d 642
Mary G. BRUCE, Administratrix of the Estate of Walter B.
Bruce, Deceased, Appellant,
v.
LUMBERMENS MUTUAL CASUALTY COMPANY, a
corporation, Appellee.
No. 6956.
United States Court of Appeals Fourth Circuit.
Argued April 20, 1955.
Decided May 10, 1955.
Robert N. Simms, Jr., and Clyde A. Douglass, Raleigh, N. C. (John M.
Simms, Raleigh, N. C., on brief), for appellant.
Murray Allen, Raleigh, N. C. (R. P. Upchurch, Raleigh, N. C., on brief),
for appellee.
Before PARKER, C. J., and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
This suit is brought by the Administratrix of Walter B. Bruce, deceased, against
Lumbermens Mutual Casualty Company to secure a judgment in the sum of
$10,000 under a policy of insurance issued to W. L. Aldridge, Jr. and O'Neals
Flying Service, Inc. The declarations in the policy disclose that the business of
the assured is the use of aircraft for business and pleasure, instruction of
students, and commercial and passenger carrying for hire, and that the aircraft
would be used in the United States, Canada and 100 miles into Mexico. The
Insurance Company agreed in the policy, amongst other things, to pay on behalf
of the insured all sums which the insured should become obligated to pay
because of bodily injury sustained by any passenger while in or upon, entering
or alighting from the aircraft, caused by accident and arising out of the
ownership, maintenance or use of the aircraft.
Liability to a passenger was incurred by the insured on June 1, 1947, during the
life of the policy, when Walter B. Bruce, the deceased, was killed while riding
as a passenger in a plane covered by the policy. The accident occurred during
an air show at the flying field of the insured for which admission was charged.
Three planes were sent up, each designed to carry two passengers. Bruce went
up with the pilot as a passenger in the lead plane. The plan was that the planes
were to be put into spiral spins in a demonstration of safe flying. Such
maneuvers are deviations from normal flight, and are known in the industry as
aerobatic flights. The plane in which the deceased was a passenger took part in
the maneuvers as planned but fell to the ground and crashed, and both
occupants were killed.
3
At the time certain regulations were in effect which had been passed by the
Civil Aeronautics Authority, the agency of the United States in charge of the
operation of civilian aircraft in the United States under the provisions of 49
U.S.C.A. 401 et seq. Section 60.9 of Part 50 of the Civil Air Regulations as to
Air Traffic Rules defined the term aerobatic as "the performance of any
intentional and unnecessary maneuvers involving an abrupt change in altitude
of an aircraft, an abnormal altitude, or an abnormal speed." Part 43 of Civilian
Air Regulations General Operation Rules contained the following paragraph.
"43.409. Aerobatic Flight. No pilot shall intentionally fly an aircraft in
aerobatic flight carrying passengers unless all occupants are equipped with
approved parachutes." Neither of the occupants of the plane which crashed was
equipped with a parachute. The evidence, however, shows that parachutes
would have been of no avail to save the lives of the occupants, because the pilot
continued to execute the spins until the plane was so near the ground that
parachutes could not have been used effectively.
The administratrix of the estate of the deceased brought a wrongful death
action against the Flying Service in the Superior Court of Wake County, North
Carolina, and secured a judgment in the sum of $15,600 which was affirmed on
appeal. Payment of the judgment was demanded and refused, and subsequently
the present action against the Insurance Company was brought and resulted in a
judgment in its favor. D.C., 127 F. Supp. 124. This appeal of the administratrix
ensued.
The defense to the present suit in the trial court and on this appeal is based on
the ground that the accident was not covered by the policy, but was within an
exclusion of the policy which provided in effect that the policy should not
apply "(d) to liability with respect to bodily injury or damage caused by the
operation of the aircraft with the knowledge of the named insured; (1) if used
for any unlawful purpose, or, during flight or attempt thereat, in violation of
any government regulation for civil aviation." There is no doubt that the plane
in which the deceased was killed was operated in violation of the quoted
regulation, since the pilot did intentionally fly the aircraft in aerobatic flight
with a passenger and the occupants were not equipped with approved
parachutes. The appellant contends, however, that this exclusion does not apply
in the present case (1) because the only exclusions applicable to passengers are
found in subsequent provisions of the policy and do not preclude the present
claim, and (2) because there was no causal connection between the violation of
the regulation and the fatal crash.
6
The subsequent exclusions in the policy refer in express terms to Coverage ABodily Injury Liability, Excluding Passengers, Coverage B-Bodily Injury
Liability Passengers, and Coverage C-Property Damage Liability. Under
Coverage B it is provided that the policy does not apply "to liability with
respect to bodily injury to any passenger caused by the operation of the aircraft
with the knowledge of the named insured: (1) during flight or attempt thereat,
between sunset and sunrise unless all night flying requirements of the Civil
Aeronautics Authority are complied with; (2) if the aircraft is carrying
passengers in excess of the policy passenger capacity as stated in the
declarations, or is loaded in excess of the gross weight permitted by the Civil
Aeronautics Authority in the Type Certificate issued for the make and type of
the aircraft, or in the certificate issued to the aircraft, whichever is more
limited."
It is conceded that the last mentioned exclusions do not of themselves preclude
recovery in this case since the flight in question did not take place at nighttime
and there was no carriage of passengers in excess of the capacity of the plane. It
is therefore contended that since these exclusions refer in express terms to the
liability of the insured for bodily injury to passengers, they should govern the
decision of this controversy rather than the general exclusion first above
described.
The appellant invokes the rule, as set out in 17 C.J.S., Contracts, 312, that the
expression in a contract of things of a class implies the exclusion of all not
expressed, even though all would have been implied had none been expressed.
The rule is generally given effect when a clause which sets out with
particularity the subject matter that the parties have in mind is followed by a
clause expressed in general terms, in which case the latter is controlled or
restricted by the former; Cleveland Trust Co. v. Consolidated Gas, E. L. & P.
Co., 4 Cir., 55 F.2d 211 and where there is an inconsistency between general
provisions and specific provisions, the specific provisions ordinarily qualify the
meaning of the general provisions. See Restatement of Contracts 236(c);
Southern R. Co. v. Coca Cola Bottling Co., 4 Cir., 145 F.2d 304; Fox Realty
Co. v. Montgomery Ward & Co., 7 Cir., 124 F.2d 710, 714; Southern Surety
Co. v. Town of Greenville, 6 Cir., 261 F. 929, 932; Nance v. Southern R., 149
N.C. 336, 371, 63 S.E. 116; In re Steelman, 219 N. C. 306, 13 S.E.2d 544.
9
This rule, however, is subject to the general standards applied in the
interpretation of contracts which require that an interpretation which gives a
reasonable effect to all the manifestations of intention in an agreement is
preferred to an interpretation which leaves a part of such manifestations
unreasonable or of no effect; Restatement of Contracts 236(a); or as said in 17
C.J.S., Contracts, 313, if both general and special provisions may be given
reasonable effect, both are to be retained.
10
It is noteworthy that there is no conflict between the particular and the general
exclusions of the policy set out above. It is true that there would seem to have
been no need to exclude from the risk the specific violations of the regulations
of the Civil Aeronautics Authority contained in the particular clauses in view of
the sweeping terms of exclusion (d) which excludes from coverage any liability
for bodily injury caused by any operation of the plane in violation of any
government regulation for civil aviation; but each class of exclusions may be
given effect without impairing the force of the other.
11
More impressive in this connection is the distorted result which would follow if
the general exclusions relating to passenger injuries should be restricted to
those which are particularized. Heretofore we have referred only to paragraph
(d) (1) of the general exclusions, but there are additional paragraphs under this
head. Thus, paragraphs (d)2 and (3) exclude from coverage liability for bodily
injury caused by operation of the aircraft if its Civil Aeronautics Authority's
certificate has been revoked or suspended, or if the certificate of the pilot has
been restricted, revoked, suspended or has expired. It is unreasonable to
suppose that the Insurance Company was willing to assume the great risk of
injury to passengers involved in the operation of a plane whose certificate had
been revoked or suspended, or whose pilot's right to operate the plane had been
withdrawn by government authority, and intended to confine its exclusions as to
passengers to flying at night and to the carriage of passengers in excess of the
capacity of the plane in violation of the regulations. Since there is no ambiguity
in the policy and no conflict between its provisions, all parts of the contract
should be given effect. Stanback v. Winston Mutual Life Ins. Co., 220 N.C.
494, 17 S.E.2d 666; Lineberry v. Security Life & Trust Co., 238 N.C. 264, 267,
77 S.E.2d 652.
12
The second contention of the appellant, that the judgment must be reversed
because no causal connection between the violation of the regulations and the
accident was shown, must also be rejected. The clear meaning of the policy is
not as the appellant suggests that the risk is excluded if the injury is caused by
a violation of the regulations, but that the risk is excluded if the injury is caused
by the operation of the plane while it is being used in violation of the
regulation. It is established by the great preponderance of authority in the
decisions of this and other courts that an insurer need not show a causal
connection between the breach of an exclusion clause and the accident, if the
terms of the policy are clear and unambiguous, since the rights of the insured
flow from the contract of insurance and not from a claim arising in tort. See
Myers v. Ocean Accident & Guarantee Corp., 4 Cir., 99 F.2d 485, 491 and
cases cited.
13
In Travelers' Protective Ass'n of America v. Prinsen, 291 U.S. 576, 54 S. Ct.
502, 78 L.Ed. 999, the evidence showed that an explosion took place as the
result of a collision between a motor truck containing dynamite and a train, and
the occupants of the truck were killed. Suit was brought on a policy of
insurance which excluded liability for death of a person which occurs in the
transportation of explosives, and it was contended that the insurer was liable
because the death of the occupants of the truck might have been caused by the
collision without more. The court rejected the contention, 291 U.S. at pages
581-582, 54 S.Ct. at page 504, saying: "The contract does not say that the
holder of the policy is to have no claim against the insurer if he dies `by reason
of' his participation in the carriage of explosives. The contract says that he is to
have no claim against the insurer if he dies `when' he is participating in the
carriage of explosives, just as it provides for a like result when he is acting as a
sailor or a soldier, or is participating in war or riot, or is under the influence of
narcotics or of intoxicating liquors. Courts of high authority have held that in
policies so phrased there is no need of any causal nexus between the injury or
death and the forbidden forms of conduct. While the proscribed activity
continues, the insurance is suspended as if it had never been in force."
14
Affirmed.
You might also like
- No ratings yetDonna Sanz, Administratrix of the Estate of Jacqueline Kautzman, Deceased, and Dean A. Fisher, Administrator of Estates of Duane G. Fischer and Judith Fischer, Deceased, and v. Renton Aviation, Inc., and Pleasure Fund Management Co., Inc., and Ralph Kautzman, of the Estate of Matthew L. Kautzman, Deceased, Third-Party and National Insurance Underwriters, Third-Party And, 511 F.2d 1027, 3rd Cir. (1975)4 pages
