Goldsmith v. New York Life Ins. (69 F.2d 273, 1934)

SANBORN, Circuit Judge.

On March 19, 1932, Bemie M. Goldsmith, a passenger in an airplane, died as the result of a crash of the plane in which he was riding. He had two life policies in the New York Life Insurance Company, one for $25,-000 and the other for $5,000, which provided double indemnity for accidental death, both being payable to the company as trustee for the benefit of the appellant, the insured’s wife, in accordance with the terms of trust agreements entered into by the insured' and the company in December, 1925. The company admitted liability for the face of the policies, but denied liability under the double indemnity clause, and this suit was brought to require the company to pay itself, as trustee, double the face of the policies. The bill of complaint set up the policies, the death of the insured, the furnishing of due proofs of death, and the company’s denial of liability for double indemnity. The company moved to dismiss for want of equity. Erom a decree dismissing the bill, this appeal is taken.

The bill shows that, by the terms of the policies, double indemnity was not payable if the insured’s death resulted “from engaging, as a passenger or otherwise, in submarine or aeronautic operations.” The court below was of the opinion that this language excluded from double indemnity eoveráge accidental death resulting from riding in an airplane as a passenger. The appellant contends that the accidental death of the insured was covered by the double indemnity elause. So far as we are advised, in no reported ease have the courts construed the identical language used in these policies.

The appellant’s contention is that at best it is doubtful whether it was intended,, by the language used, to exclude from double indemnity benefits the accidental death of a casual passenger traveling in an airplane engaged in transporting passengers for hire, and that, under the familiar rule that the language of a policy, if ambiguous, will be construed against the insurer, the company should be required to pay double indemnity.

We shall review briefly some of the cases for the purpose of indicating what the attitude of the courts has been with reference to clauses limiting coverage in case of death resulting from airplane accidents.

Bew v. Travelers’ Ins. Co. (1921) 95 N. J. Law, 533, 112 A. 859, 14 A. L. R. 983. The policy excluded “injuries ' * * * sustained * *