STEVEN v. FIDELITY AND CASUALTY COMPANY OF NEW YORK

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District Court of Appeal, Second District, Division 4, California.

Kathryn E. STEVEN, Plaintiff and Appellant, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation, Earle A. Lloyd, Mercury International Insurance Underwriters, Defendants and Respondents. *

Civ. 25715.

Decided: May 23, 1962

Gerald H. Gottlieb, Beverly Hills, John W. Preston, Los Angeles, for plaintiff and appellant. Crider, Tilson & Ruppe, and Edward A. DeBuys, Henry E. Kappler, Los Angeles, for defendants and respondents.

Plaintiff, as beneficiary, brought ths action upon a life insurance policy insuring the life of her deceased husband, George A. Steven. The policy was purchased by decedent prior to a contemplated round-trip air flight from Los Angeles to Dayton, Ohio, and return. On the return trip decedent was a passenger in a Piper Tri-Pacer airplane (an air taxi) chartered for the flight from Terre Haute to Chicago. On the trip to Chicago the plane crashed and decedent died a few hours thereafter from the injuries suffered.

After the trial by the court without a jury judgment was entered for defendants and plaintiff appeals.

A brief summary of the facts either admitted in the pleadings or stipulated to in the pre-trial statement is as follows:

On March 3, 1957, the deceased, George A. Steven, purchased at Los Angeles, California, a round-trip airplane ticket to Dayton, Ohio, via Terre Haute and Chicago on the return leg. Through a vending machine at Los Angeles International Airport he also purchased for a premium of $2.50 an insurance policy in the amount of $62,500.00 on his life, designating his wife Kathryn E. Steven as the beneficiary.

On March 6, 1957, he found himself at the Terre Haute airport on his way home. The 4:26 p. m. flight of the Lake Central Airlines which was to take him from Terre Haute to Chicago was canceled. This was the flight that the deceased had intended to take as part of his round-trip return route pursuant to his ticket as originally purchased. The deceased, along with four other prospective passengers for the Lake Central Airlines flight, proceeded to the Turner Aviation Corporation which agreed to fly them to Chicago for $36.00 a person, or for $21.00 a person if two more passengers could be obtained. Two additional passengers were obtained and, therefore, the deceased and each of the other passengers paid Turner Aviation Corporation $21.00 a person.

The deceased boarded an aircraft of Turner Aviation Corporation which took off from the Terre Haute airfield at 5:55 p. m. C.S.T. Sometime around 7:10 p. m. on March 6, 1957, near Grant Park, Illinois, the airplane crashed.

During March 1957 Turner Aviation Corporation operated out of Terre Haute under an air taxi certificate issued either by the Civil Aeronautics Board or the Civil Aeronautics Administration. On March 6, 1957, Turner Aviation Corporation held no Certificate of Public Convenience and Necessity issued by the United States Civil Aeronautics Board, which was the governmental authority authorized to issue such certificates. Neither the State of Illinois nor the State of Indiana grants Certificates of Public Convenience and Necessity or other authorizations to air carriers of any kind. During March 1957 Turner Aviation Corporation did not file, print, maintain and publish schedules and tariffs for regular passenger service between named cities within the boundaries of either Illinois or Indiana at regular and specified times. The plane trip on which the accident occurred was not a regular and scheduled flight of Turner Aviation Corporation but the flight was flown pursuant to the arrangements mentioned above.

The coverage clause of the policy is as follows:

‘1. INSURING CLAUSE: Ticket or Pass Requirement. The Company will pay the benefits specified below if during the term of this policy the Insured suffers loss resulting directly and independently of all other causes from accidental bodily injury (hereinafter referred to as ‘such injury’), sustained under circumstances specified below during the first one-way or round airline trip taken by the Insured after the purchase of this policy on Aircraft Operated by a Scheduled Air Carrier as defined below from the Point of Departure to the Destination, both shown above, and return if round trip ticket is obtained before departure, provided that at the time that the Insured sustains such injury he is traveling on a transportation ticket or pass covering the whole of said airline trip, issued to him for transportation on an aircraft operated by a scheduled air carrier.'

The definition of ‘aircraft operated by a scheduled air carrier’ is contained in paragraph 4 of the policy as follows:

‘4. DEFINITION OF AIRCRAFT OPERATED BY A SCHEDULED AIR CARRIER. The words ‘Aircraft Operated by a Scheduled Air Carrier’ as used in this policy, mean and are defined as follows: (1) aircraft of United States registry, operated on a regular, special or chartered flight by a scheduled air carrier holding a Certificate of Public Convenience and Necessity issued by the Civil Aeronautics Board of the United States of America, or its successor, and which in accordance therewith files, prints, maintains and publishes schedules and tariffs for regular passenger service between named cities at regular and specified times, or (2) aircraft of foreign registry * * * or (3) aircraft of United States registry operated on a regular scheduled flight solely within the boundaries of a State of the United States by a scheduled air carrier legally authorized to conduct such operation, and which files, prints, maintains and publishes schedules and tariffs for regular passenger service between nemed cities solely within the boundaries of such State at regular and specified times. Specifically excluded from the above definition of ‘Aircraft Operated by a Scheduled Air Carrier’ are any and all aircraft operated by scheduled military airlines and any and all aircraft operated by air carriers recognized, designated, licensed or determined by the governmental authority having jurisdiction over civil aviation as being irregular or non-scheduled air carriers.'

The court made the following finding: ‘* * * that George A. Steven, at the time of the accident referred to in plaintiff's Complaint and death resulting therefrom, was not riding as a passenger on an aircraft operated by a scheduled air carrier, as defined in said policy, and further finds that he was riding a charter plane from Terre Haute, Indiana, to Chicago, Illinois.’

On the basis of the above finding the court concluded that plaintiff was not entitled to recover on the policy and judgment was given for defendants.

Plaintiff contends that the airplane trip on which the deceased sustained fatal injuries was included within the coverage of the policy. Plaintiff further argues the provisions of the policy are ambiguous and all uncertainties are to be resolved against the insurance carrier in favor of the insured and the insured's beneficiary. However, upon reading the insuring clause and the definition of ‘aircraft operated by a scheduled air carrier’ we find no ambiguity or uncertainty. We agree fully with the trial judge and on the points of claimed ambiguity and the coverage provided by the policy we quote from, approve and adopt his memorandum decision in part as follows:

‘The court fails to see any ambiguity in the language of the policy which in reasonably clear language restricts coverage to death or injury resulting while the insured is a passenger upon an ‘aircraft operated by a scheduled air carrier’ * * *

‘It seems equally clear that the aircraft upon which the insured was a passenger at the time it crashed and caused his death does not fall within Clause (2) or (3) of the foregoing definition, for it was not of foreign registry and it was not an aircraft of United States registry operated on a regular scheduled flight solely within the boundaries of a State of the United States. And it is even more clear that it does not fall within Clause (1) of the definition for it is admitted that the operator thereof did not hold a Certificate of Public Convenience and Necessity issued by the Civil Aeronautics Board of the United States and that it did not print, maintain or publish schedules and tariffs for regular passenger service between named cities at regular and specified times. * * *

‘Under the circumstances, the court is of the view that the language of the policy defining a ‘scheduled air carrier’ is clear and unambiguous and must control.'

The case of Thompson v. Fidelity & Casualty Co. of New York (1958) 16 Ill.App.2d 159, 148 N.E.2d 9, involved an action on a policy similar to that in the instant case. The question presented was whether or not the aircraft involved was ‘operated by a scheduled air carrier.’ In holding for the defendant the court said (148 N.E.2d 9, 14–15):

‘The construction of the provisions of the policy is for the court and what is meant by the term ‘scheduled air carrier’ is a question of law, but whether the airplane was in fact a ‘scheduled air carrier’ within the meaning of the policy is a question of fact. * * * There is nothing ambiguous about the term scheduled air carrier. This term has a clear and concise meaning and when defined by any standard it simply denotes an air carrier which operates and holds itself out to the public that it does operate aircraft between designated points regularly, or with a reasonable degree of regularity, pursuant to a schedule previously announced. * * * There is no evidence in the record that Peninsular Air Transport Company was a scheduled air carrier holding a Certificate of Public Convenience and Necessity issued by the Civil Aeronautics Board of the United States, and which in accordance therewith files, prints, maintains and publishes schedules and tariffs for regular passenger service between named cities at regular and specified times. In fact, the evidence is without conflict that Peninsular was a nonscheduled air carrier.'

See also the case of McBride v. Prudential Ins. Co. of America (1947) 147 Ohio St. 461, 72 N.E.2d 98.

The case relied upon by plaintiff, Lachs v. Fidelity & Casualty Co. of New York, 306 N.Y 357, 118 N.E.2d 555, is distinguishable from the case at bar. The policy in that case was different from the one involved here in that it contained only one clause restricting coverage to ‘Civilian Scheduled Airlines,’ a phraseology which was changed by the insurer after the Lachs decision was handed down. By a four to two decision the Court of Appeals upheld the lower court's denial of defendant's motion for a summary judgment. The court stated that the term ‘Civilian Scheduled Airline’ was not used in the Civil Aeronautics Act, or the regulations thereunder, that the meaning of such phrase was not well known and was therefore ambiguous and that the flight in question on the Miami Airlines was covered. The court relied to some extent on the fact that the decedent was invited by a sign to purchase ‘Airline Trip Insurance’ and that the vending machine was in front of the nonscheduled ticket counter where decedent purchased her ticket. As the case was decided on defendant's motion for a summary judgment it is also important to note that plaintiff had by affidavit asserted that Miami Airlines had published its schedules. On this point the court said (118 N.E.2d 555, 559): ‘Plaintiff claims that Miami Airline, Inc., maintained regular, published schedules of fares and schedules showing passenger mile rates and that it held itself out as maintaining regular schedules of flights and tickets were sold for stated hours of departure and that it was licensed by the Civil Aeronautics Board to carry passengers and freight with large aircraft in interstate, overseas and foreign air transportation. We think there is a question of fact presented.’

The minority opinion in the Lachs case recognized that the statutes and rules of the Civil Aeronautics Board use the term ‘Scheduled Air Carrier’ rather than ‘Civilian Scheduled Airline’ as used in that policy; however, the minority pointed out (118 N.E.2d 555, 561): ‘* * * that the term ‘scheduled airline’ has gained a wide and general currency, and that it is a term of clear and precise meaning, which has become part and parcel of the ordinary person's everyday vocabulary. Defined by any standard and from any point of view, and compressed into a sentence, it simply and solely denotes a common carrier permitted to operate, or to hold out to the public that it operates, one or more airplanes between designated points regularly, or with a reasonable degree of regularity, in accordance with a previously announced schedule.'

We believe the Thompson v. Fidelity & Casualty Co. case, supra, 16 Ill.App.2d 159, 148 N.E.2d 9, involving the same policy as we are now considering is much more persuasive and in point than is the Lachs decision.

In attempting to avoid the plain language of the coverage clause and the definition of ‘aircraft operated by a scheduled air carrier’ plaintiff points out that, under the regulations of the Civil Aeronautics Board, Turner Aviation Corporation as holder of an air taxi certificate was authorized to conduct operations on a scheduled basis. From this plaintiff argues that insofar as the regulations are concerned Turner Aviation was in effect a ‘scheduled air carrier.’

Even assuming that by reason of such authorization (not certification) an air taxi operator may be said to be operating as a scheduled air carrier between two cities (although it in fact maintained no such regular service), the fact remains that it would not come within the policy definition of a ‘scheduled air carrier’ as it neither held a Certificate of Convenience and Necessity nor had it filed, printed, maintained or published schedules and tariffs for regular passenger service between the cities of Terre Haute and Chicago at regular and specified times.

Another factor here prevents the insured from coming within the coverage or insuring clause. At the time of the tragedy the insured was not ‘traveling on a transportation ticket or pass covering the whole of said airline trip’ as set forth in the policy, namely, from Los Angeles to Dayton, Ohio, and return. The flight from Terre Haute to Chicago constituted a part of the contemplated round trip but the insured, while upon that flight, was not traveling on a transportation ticket ‘* * * covering the whole of said airline trip’ (Los Angeles to Dayton and return). On the contrary it is an admitted fact that at the time he was traveling on a ticket covering a flight from Terre Haute to Chicago or as a member of a party which had chartered the plane for the flight between these two cities.

Plaintiff makes another argument based upon one sentence contained in paragraph 4 of the policy defining ‘aircraft operated by a scheduled air carrier.’ This sentence reads: ‘Specifically excluded from the above definition of ‘Aircraft Operated by a Scheduled Air Carrier’ are any and all aircraft operated by scheduled military airlines and any and all aircraft operated by air carriers recognized, designated, licensed or determined by the governmental authority having jurisdiction over civil aviation as being irregular or non-scheduled air carriers * * *' Plaintiff argues that Turner Aviation had been authorized to fly scheduled trips and that it had never been designated as, or determined to be, an irregular or nonscheduled air carrier. Because not specifically excluded, plaintiff then argues, the Turner plane must have been included within the coverage.

Plaintiff's contention on this point is not valid. Under the Civil Aeronautics Board regulations as issued (and introduced into evidence) Turner Aviation was an irregular carrier. The regulations provided: ‘The term ‘Irregular Air Carriers' means any air carrier which (1) directly engages in air transportation, (2) does not hold a Certificate of Public Convenience and Necessity under section 401 of the Civil Aeronautics Act of 1938, as amended, 49 U.S.C.A. § 481, and (3) does not operate, or hold out to the public expressly or by course of conduct that it operates, one or more aircraft between designated points, or within a designated point, regularly or with a reasonable degree of regularity, upon which aircraft it accepts for transportation, for compensation or hire, such members of the public as apply therefor or such property as the public offers.’

Furthermore, even though it be assumed that the Turner plane was not within the sentence on specific exclusion, it still does not come within the coverage provided for by the policy.

We believe there is no merit to the argument made by plaintiff that the insured did not understand the policy of insurance which he purchased. As the trial court said in its memorandum decision: ‘On the contrary, it seems more reasonable to assume that the insured, then contemplating a round-trip flight on a scheduled air carrier from Los Angeles to Dayton and return, understood and believed when purchasing the policy in question that he was securing protection during the course of the particular flight upon the round-trip ticket which he had purchased therefor.’

Plaintiff raises finally a contention that the insuring clause covering only a ‘scheduled air carrier’ had been agreed upon by all insurance carriers writing this type of insurance; that such agreement was in restraint of trade and therefore illegal. This is an action upon a life insurance policy against the single defendant insurance company which issued it. Neither the group of underwriters which may have approved the form of policy nor the non-scheduled carriers are parties. We do not see any issue of restraint of trade involved in this action.

As the accident in question here did not come within the coverage and insurance provided for in the policy, the judgment in favor of defendants is affirmed.

BALTHIS, Justice.

BURKE, P. J., and JEFFERSON, J., concur.