DEATH IN AVIATION

aeronautics" within the intent and meaning of the provision specifically excepting such a risk from the indemnity contract contained

in the policy. * * *

Reversed.

BROWN, C. J., and TAYLOR, ELLIS and WEST, J. J., concur.19

PETERS v. PRUDENTIAL INS. CO.
Supreme Court of New York, 1929. 133 Misc. 780, 233 N. Y. S. 500.

RODENBECK, J. The defendant insured plaintiff's husband against death resulting from bodily injuries caused solely through external, violent, and accidental means, except where such death resulted from having been en in _,aviation or submarine operations or mihtii or naval service in time of war." He was killed while riding as a passenger in an airplane, and it is now claimed that his death resulted while engaged in aviation, and that the phrase "in time of war" does not apply to this situation. The clause quoted above is ambiguous, it is apparent, from the opposing constructions which the plaintiff and the defendant have placed upon it.

One of the contentions of the plaintiff is that the exceptions were intended to apply only to an accidental death occurring while en-gaged in aviation in time of war. This construction seems to be a reasonable one, considering the punctuation employed. If the author of the language intended to apply the expression "engaged in aviation" without limitation as to the time of such engagement, and to limit the expression "in time of war" to the last antecedent, he would have placed a comma after the word "aviation" and also one after the word "operation." Such punctuation would clearly show that he intended to limit the expression "in time of war" to the last antecedent; but, as he has omitted this punctuation, it is reasonable to assume that he had in mind the danger from the risk incident to accidental death in time of war. This was a risk that might well be guarded against.. The deaths from this cause might be so numerous as to ruin an insurance company. It appears from the clause following the one under construction that the author of the provision clearly had in mind a risk that might accompany war-time conditions, for in the succeeding clause he exempts the company from accidental death resulting "from a state of war, riot or

19 Accord: Meredith v. Business Mens Ace. Assn. (1923) 213 Mo. App. 688, 252 S. W. 976, Comment (1923) 10 Va. L. Rev. 78; Bew v. Travelers Ins. Co. (1921) 95 N. J. L. 533, 112 Atl. 859, 14 A. L. R. 983.

The insured was struck and killed by a propeller of an airplane after alighting from a flight. Was he participating in aeronautics? It was held he was not in Tierney v. Occidental Life Ins. Co. (1928) 89 Cal. App. 779, 265 Pac. 400.