DEATH IN AVIATION

(h) DEATH OF INSURED IN AVIATION.

TRAVELERS INS. CO. v. PEAKE.

Supreme Court of Florida, 1921. 82 Fla. 128, 89 So. 418.

WHITFIELD, J. Judgment for the plaintiff was rendered on a demurrer to a declaration on an insurance policy and defendant took writ of error.

The policy made a part of the declaration insured the plaintiff "against loss resulting from bodily injuries, effected directly and

to the argument of the Arkansas court, that such payment might be regarded as a fee for the privilege of continuing the policy after suspension, `because the insured * * * might become impaired actually during the course of service, and, therefore, be unable to obtain insurance.' He further compared this to the situation of the reinstatement of a policy which has lapsed, in which ease the assured must not only pay the premium and interest for the period of delinquency but also resubject himself to physical examination.

"That part of the premium known as the reserve quite properly goes to the company upon the reinstatement of the policy; the increased risk due to age is completely taken care of by the annual increase in the amount of the annual reserve. This will take care of the ordinary increase of hazard. That the difference between the annual reserve and the annual premium should, as Mr. Keesling seems to urge, be considered as a charge for the possible increase of hazard due to engaging in the service would seem unfair, in view of all the circumstances. The construction urged, it is submitted, is not warranted by the express contract; and there is no social object that night possibly be served by the creation of this obligation." [Reprinted by permission.]

Other cases in accord with the principal ease are Malone v. State Life Ins. Co. (1919) 202 Mo. App. 499, 213 S. W. 877 (where the insured was accidentally shot by a comrade while encamped in the United States) ; Redd v. American Cent. Life Ins. Co. (1918) 200 Mo. App. 383, 207 S. W. 74, Comments (1918) 6 Va. L. Rev. 64, (1919) 4 Corn. L. Q. 413 (where insured died of pneumonia while stationed in the United States; "active service" was defined as "fighting"); Myli v. American Life Ins. Co. (1919) 43 N. Dak. 495, 175 N. W. 631, 11 A. L. R. 1097, Comment (1920) 4 Minn. L. Rev. 457, (where the insured died of influenza while stationed at Dunwoodie Institute, Minneapolis. Here the court reached this result upon the theory that the exemption clause was ambiguous when considered with other clauses in the policy. J. H. Cohen op. cit., p. 49 supra in commenting on this last case says, "One cannot but believe that the court in its anxiety to favor the assured under these circumstances saw a verbal difficulty which did not exist.") Kelly v. Fidelity Mut. Life Ins. Co. (1919) 169 Wis. 274, 172 N. W. 152, 4 A. L. R. 845, Comment (1920) 1 Wis. L. Rev. 63 (where the insured was killed accidentally by the skidding of his motorcycle while 100 miles behind the lines in France).

In Sandstedt v. American Cent. Life Ins. Co. (1920) 109 Wash. 338, 186 Pac. 1069, where a contrary result was reached, the military clause was identical word for word with that of the principal case.

Other cases reaching the same result as the principal case upon clauses varying somewhat in terminology are Atkinson v. Indiana Nat. Life Ins. Co. (1921) 76 Ind. App. 344, 132 N. E. 263, Comment (1922) 20 Mich. L. Rev. 550; Johnson v. Mutual Life Ins. Co. (1922) 154 Ga. 653, 115 S. E. 14, Comment (1923) 21 Mich. L. Rev. 705; Illinois Bankers Life Assn. v. Davaney (1924) 102 Okla. 302, 226 Pac. 101, Comment (1925) 23 Mich. L. Rev. 418; Boatwright v. American Life Ins. Co. (1920) 191 Iowa 253, 180 N. W. 321, 11 A. L. R. 1085; Gorder v. Lincoln Nat. Life Ins. Co. (1920) 46 N. Dak. 192, 180 N. W. 514, 11 A. L. R. 1080, Comment (1921) 6 Corn. L. Q. 450.

See further the annotations, 4 A. L. R. 848, 11 A. L. R. 1103, 15 A. L. R. 1280, 7 A. L. R. 378 and the Note (1920) 18 Midi. L. Rev. 686.