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• Title: Sneddon v. Massachusetts Protective Ass'n
• Author : Supreme Court of New Mexico
• Release Date : January 10, 1935
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 62 KB

Description

This is an action on an accident insurance policy. A jury was waived, judgment was for plaintiff, and defendant has appealed.
The legal question presented is whether the insured met his death under circumstances excepted under the terms of the policy.
Paragraph G of the policy sued upon reads as follows: "G. This policy does not cover death or other loss due to disease,
whether acquired accidentally or otherwise, or sustained as the result of participation in aviation, aeronautics or subacquatics,
or while engaged in rioting, fighting, or strikes; or death caused by surgical treatment except such as may result from surgical
operation made necessary solely by injury covered by this policy and performed within ninety days of the date of the accident." The material facts are stated in paragraph 5 of the amended complaint as follows: "That on the 27th day of November, 1932,
and while said insurance policy was in full force and effect, and while the parties thereto were bound by all of the terms
and conditions of said policy, the said James Sneddon met his death due to bodily injuries effected directly and independently
of all other causes by accidental means and not as the result of self destruction or any attempt thereat; that said death
was caused by wounds and injuries incurred and suffered by the said James Sneddon in an airplane crash on the said 27th day
of November, 1932, in which an airplane owned by one Wood and one Irick, and then and there as plaintiff is informed and verily
believes, driven, operated and controlled by said Irick, did accidentally fall and/or crash upon the street within the Town
of Gallup, County of McKinley and State of New Mexico; that said James Sneddon was a casual invited passenger in said airplane.
* * *" Appellee contends that the judgment should be sustained because the excepted clause above quoted does not relieve the
insurer-appellant for two reasons: First, a casual invited passenger in an airplane is not participating in aviation or aeronautics;
second, the exception clause applies only to death due to disease. Appellee maintains that there is no real distinction between
the term "engaged in aviation" and "participating in aviation," and cites cases annotated in 69 A. L. R. 331. The weight of
authority is against appellee's contention. See Head v. New York Life Insurance Co. (C. C. A.) 43 F.(2d) 517, where Judge
Orie L. Phillips reviews the authorities; also First National Bank of Chattanooga v. Phoenix Mutual Life Insurance Co. (C.
C. A.) 62 F.(2d) 681. In Peters v. Prudential Insurance Co., 133 Misc. 780, 233 N. Y. S. 500, 502, the court, in distinguishing
between the use of the words "engage" and "participate," said: "If it was intended to except occasional rides in an airplane
by a passenger, the author of the language should have employed some other expression, such as 'participating in,' used in
Bew v. Travelers' Ins. Co., 95 N. J. Law, 533, 112 A. 859, 14 A. L. R. 983, Travelers' Ins. Co. v. Peake, 82 Fla. 128, 89
So. 418, and Meredith v. Business Men's Acc. Ass'n of America, 213 Mo. App. 688, 252 S. W. 976. Not having done so, the expression
'engaged in aviation' should be given its ordinary meaning and the impression that would be made upon the mind in reading
the clause. The word 'engaged,' as thus employed, gives the impression that it means 'something more than occasional participation."

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