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Thompson v. Fidelity & Casualty Co.

JANUARY 24, 1958.

MARGARETHA THOMPSON, PLAINTIFF-APPELLEE,

v.

FIDELITY AND CASUALTY COMPANY OF NEW YORK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Judgment reversed.

JUSTICE WRIGHT DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 6, 1958.

This is an appeal by the defendant from a judgment entered by the Circuit Court of Winnebago county in the sum of $25,000 in favor of the plaintiff. The case was tried before a jury and at the conclusion of all of the evidence, the court directed a verdict in favor of the plaintiff in the sum of $25,000 and entered judgment upon the verdict.

The facts as alleged in plaintiff's complaint, briefly summarized, in substance are as follows: First, that the plaintiff, Margaretha Thompson, was the beneficiary under two policies of insurance issued by the defendant, Fidelity and Casualty Company of New York, in the sums of $18,750 and $6,250 respectively. Second, that on November 17, 1955, Robert J. Caruth, at that time the husband of the plaintiff, purchased the two policies of insurance from a vending machine at the Boeing Air Field, Seattle, Washington, immediately prior to embarking on a plane operated by Peninsular Air Transport Company scheduled to leave at 8:00 o'clock p.m. Third, that the said Robert J. Caruth purchased a ticket for an air line trip which was scheduled to leave Boeing Field at 8:00 o'clock p.m., but which was delayed until 12:00 o'clock midnight of November 17, 1955. Fourth, that by the terms of said insurance policies, the defendant contracted to pay to the beneficiary the sum of $25,000 in the event of the death of Robert J. Caruth while engaged in and as a result of the air trip covered by the air line ticket. Fifth, that the said aircraft did in fact take off from Boeing Field at or about 12:00 o'clock midnight on said date with Robert J. Caruth as a passenger. Sixth, that the said aircraft crashed on take off and as a result thereof Robert J. Caruth was killed, and that plaintiff made proper demand but defendant refused to pay the sum of $25,000.

The answer, as amended, filed by the defendant admitted: First, that Robert J. Caruth was a passenger on the Peninsular Aircraft which took off from Boeing Field at about midnight November 17, 1955, and that said aircraft crashed and caused his death, Second, that the beneficiary gave proper notice and that the defendant refused to pay. Concerning the allegation that the defendant contracted to pay the beneficiary $25,000 in the event of the death of Robert J. Caruth, defendant averred that it did not so contract; but on the contrary, the insuring clause of the policies limited coverage to a trip taken by the insured "after the purchase of this policy on Aircraft Operated by a Scheduled Air Carrier as defined" in the policies and that the definition of an aircraft operated by a scheduled air carrier did not include, and specifically excluded, aircraft operated by Peninsular Air Transport.

Plaintiff filed a reply to this answer denying that Peninsular Air Transport Company was not a scheduled air carrier and denying that Peninsular Air Transport was recognized, designated and determined, as an irregular or non-scheduled air carrier. The pleadings set out above presented the essential issues decided by the trial court which are now before this court for review.

Most of the facts were either admitted in the pleadings, stipulated during the trial, or established by uncontroverted evidence. The evidence reveals that on November 17, 1955, Robert J. Caruth was at the Boeing Air Field in Seattle, Washington. There he purchased, through a vending machine, two insurance policies in the amounts heretofore stated, one at 3:42 o'clock p.m. and the other at 3:47 o'clock p.m. That thereafter, the said Robert J. Caruth purchased a ticket for an air trip, which was sold to him through an agency, and boarded a DC-4 aircraft operated by Peninsular Air Transport Co., which aircraft took off from Boeing Field about seven miles south of Seattle, at around midnight, crashing on take off and killing Caruth. Peninsular Air Transport Company was in November of 1955, at the time of the occurrence in question, a partnership owned by William Roy Robinson and Howard Bert Robinson, having its principal operation and maintenance base at Miami (Fla.) Air Transport, Hanger No. 1. It operated four aircraft and operated them under a Letter of Registration from the Civil Aeronautics Board and an Operating Certificate from the Civil Aeronautics Administration under Part 42 of the Civil Air Regulations. Peninsular Air Transport Company did not maintain scheduled flights, file schedules and tariffs for any regular passenger service, nor hold itself out as maintaining any regular schedule or flights.

The aircraft in question left Miami on November 13th, 1955, and flew without passengers to Richmond, Virginia. It then flew to Tacoma, Washington, under a Military "CAM" Flight. From that point it proceeded without passengers from Tacoma to Boeing Field, Seattle, Washington, arriving on November 14th, 1955. The aircraft was not at the time of the crash, owned, operated or chartered by the United States Government. When the aircraft arrived at Boeing there were no flights for it. It left Boeing Field on November 17, 1955, on a flight that was composed of 100 per cent military troops, which, however were individually ticketed passengers. On this fatal flight that left Seattle on November 17th, the passengers might have been under orders, might have been on furloughs, or might have been enroute for any number of reasons. A prospective passenger on this type of flight is given an agency ticket, which is exchanged for a carrier ticket. Peninsular Air Transport sold all of its tickets through agencies. Sometimes these tickets stated the hour of departure and sometimes they did not. If an agency was unable to sell sufficient tickets to make a pay load, Peninsular was not obligated to take off and had the prerogative of canceling the flight. William Roy Robinson, one of the partners of Peninsular Air Transport Co., testified that he believed there was something on the carrier ticket which stated that it was not a scheduled carrier and to his knowledge this was true of Peninsular Air Transport. The evidence is conflicting as to the exact time set for take off. The specific time set for take off was delayed because of weather. However, the aircraft did in fact take off shortly before midnight. An irregular air carrier sometimes gets only a few hours' notice of a flight. On the date of the crash, Peninsular had no regularly scheduled flights from Boeing Field to any other point in the United States. The routes flown by Peninsular are not exactly the same as those flown by scheduled air lines.

It is the defendant's theory that the only issue involved in this case is whether the insured was a passenger on an aircraft operated by a "scheduled air carrier" as defined in the policy. Further, it is urged by the defendant that the undisputed evidence shows that the insured was not a passenger on an aircraft operated by a scheduled air carrier, and the trial court should have directed a verdict for the defendant.

For a determination of this cause, we quote below the portions of this policy pertinent to the issues.

It commences with the following words printed in capitals and in type roughly twice the size of the ordinary type in the body of this policy:

"DO NOT PURCHASE MORE THAN A TOTAL OF $62,500 PRINCIPAL SUM — NOR FOR TRAVEL ON OTHER THAN ...


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