The original opinion states that the facts in this case are undisputed. And so they *Page 919 are. The insured, who paid no fare, was invited by an amateur aviator to fly with him from Augusta, Arkansas, to St. Louis, Missouri. They did not reach their destination, as the plane "crashed and struck the ground," killing the insured. The insured had no control over the plane, but it occurs to me that neither this fact nor the failure to pay fare affected the hazard of the journey.
The original opinion cited only one case to support the conclusion announced that the insured was not participating in aviation at the time of his death, this being the case of First National Bank v. Phoenix Mutual Life Ins. Co., 62 F.2d 681. The headnote in that case reads as follows: "Insurer held not liable under double indemnity provision excepting death from `participation in aeronautics operations,' where insured was killed while passenger in aeroplane." It requires no argument to show that this case affords no support for the conclusion announced.
The labored supplemental opinion on rehearing is equally unconvincing to me, and I therefore respectfully dissent. Quotations appearing in this opinion from a number of cases there cited show clearly that they do not support the conclusions which the majority have reached. These cases are brushed aside with the observation that they are hair-splitting and appeal only to the grammarian and the precisian.
It is a wise and just rule of construction, and one of universal application, that all doubt, or any ambiguity, as to the meaning of an insurance policy is resolved against the insurer, for the reason, often stated, that the language expressing or limiting the liability insured against is carefully chosen by the insurer. But the rule is equally as well established, and is equally as wise and as just, that courts may not create ambiguities by strained constructions which would not otherwise be found to exist. Insurance policies are to be construed like other contracts, where their meaning plainly appears, and it has never been questioned that insurers may assume and insure against some risks and exempt themselves from liability for others. *Page 920
The courts — all of them — are reluctant to permit insurance companies to forfeit their policies, upon which premiums have been paid, especially upon purely technical grounds, but there is no question of forfeiture in this case. The question is rather whether we shall search for an ambiguity whereby, when if has been found, the insurer may be held liable for a risk from which, in my opinion, if has expressly exempted itself.
Insurance companies first undertook to exempt themselves from liability to persons "engaged in aviation or aeronautics," but when some of the courts followed our opinion in the case of Benefit Ass'n v. Hayden,175 Ark. 565, 299 S.W. 995, 57 A.L.R. 622, and held that a passenger having no control over the machine in which he flew was not "engaged in aviation or aeronautics," the companies writing insurance of this character attempted to clarify their exemption by providing that they should not be liable to persons "participating in aviation." The distinction appears to be invisible to the majority, but it is one which has been recognized by a line of decisions previously unbroken.
The exemption existing in the policy here sued on is not merely against the aviator flying the machine, but if is against all persons participating in aviation. Can it be true that the aviator is in any more danger than his passenger? Is not the hazard as great in the one case as in the other? Now, the majority say that a different result would have been reached had the exemption from liability read "while participating as a passenger or otherwise in aviation or aeronautics." Why so? This is not broader than file language employed. The insurer attempted to exempt itself from liability to the insured from injuries received "from participation in aviation or submarine operations," not merely as a passenger, but at all. There is no qualification as to the extent of the participation. If the tradesman, artisan or farmer, to whom the majority refer, had promised his wife, before leaving home, that he would not participate in aviation while gone, he would probably have had trouble convincing her, upon his return, that he had kept his word. If he admitted that a part or all of his *Page 921 journey had been made in a flying machine. But the cases uniformly distinguish between engaging in aviation and participating in aviation. In pointing out this distinction the Supreme Court of Indiana, in the case of Masonic Accident Insurance Co. v. Jackson, 200 Ind. 472,164 N.E. 628, 61 A.L.R. 840, said: "To say that one is `engaged' in an occupation signifies much more than the doing of one act in the line of such occupation." (Citing cases.) Further reference will be made to this case, as it appears to have afforded the majority some support for their conclusion.
I might defer to the majority if the text writers on insurance had not construed the numerous cases on the question here under consideration just as I do.
For instance, at 1252 of Couch's Cyclopedia of Insurance Law, vol. 6, the author says: "Section 1252. Death or injury while participating or engaging in aeronautics, aviation, etc. A passenger in an aeroplane flying in the air, whether he takes part in the operation of the plane or not, is `participating in aeronautics,' within the intent and meaning of a provision of an insurance policy specifically excepting such a risk."
The majority inadvertently say that Sovereign Camp W. O. W. v. Compton, 140 Ark. 313, 215 S.W. 672, is the only case cited, and that it does not support the text. On the contrary, the annotated cases reported in 14 A.L.R. 986; 40 A.L.R. 1176; 57 A.L.R. 625; and 61 A.L.R. 846, are cited in note 1 to the paragraph above quoted, and these annotated cases collect innumerable cases on the subject. Note 2 to this paragraph cites cases from California, Florida, Missouri and New Jersey in addition to the Arkansas case.
The majority quote from Cooley's Briefs on Insurance, but treat the quotation as being without authority because it was based upon the decision of an inferior court of Indiana, which has been superseded by a later decision of the Supreme Court of that State. This statement is as unfortunates as was the reference to Couch's Cyclopedia of Insurance Law, supra. I give the exact statement from Cooley's Briefs on Insurance, (vol. 6, 2d ed., page 5309). It reads as follows: "Where insured *Page 922 died from injuries received while riding as passenger in aeroplane, there could be no recovery on a policy which excepted death or disability while `engaged in aviation,' that phrase meaning the act of flying in the air in machine heavier than air, whether piloting or riding as passenger (Masonic Acc. Ins. Co. v. Jackson, (Ind.App.) 147 N.E. 156). A passenger in an airplane was `participating' in `aeronautics' within the meaning of a provision in an insurance policy providing that it should not cover any person or injuries, fatal or nonfatal, sustained by insured while participating in aeronautics (Bew v. Travelers' Ins. Co., 95 N.J. Law 533, 112 A. 859,14 A.L.R. 983)." Numerous cases are cited in the note to this text which fully support if.
This Indiana case was first decided by "Appellate Court of Indiana," and is reported in 147 N.E. 156. The headnote — and the only one — to that case reads as follows: "Where insured died from injuries received while riding as passenger in aeroplane, beneficiary held not entitled to recover on policy which excepted death or disability while `engaged in aviation,' that phrase meaning the act of flying in the air in machine heavier than air, whether piloting or riding as passenger." If will be observed that the exemption contained in the policy there construed was from death or disability while "engaged in aviation." This case reached the Supreme Court of Indiana and is the case to which I have previously referred to as being reported in 61 A.L.R. 840. The Supreme Court of Indiana quoted at length from our case of Benefit Ass'n R. R. Employees v. Hayden,175 Ark. 565, 299 S.W. 995, 57 A.L.R. 622, and appears to have adopted its reasoning, but, as appears from the language already quoted from that opinion, the Supreme Court of Indiana recognized the distinction between being engaged in aviation and participating in aviation. The annotator, in his note to this case, says: "These cases make a distinction between `engaged' in aviation and `participating' in aviation or aeronautics, and proceed upon theory that to be `engaged' in aviation imports something more than (as expressed in the latter case) `occasional participation'." *Page 923
In the late work of Richards on the Law of Insurance (4th ed.), at page 660, it is said: "A construction urged upon the courts, but consistently refused is, that one participates only when he is physically active in the management and control of an instrument or agency and that the word `aeronautics' is necessarily descriptive of an occupation. Such a construction would give too narrow a meaning to both words. The Standard Dictionary defines `participate' as meaning `to receive or have a part or share of; to partake of; experience in common with others; to have or enjoy a part or share in common with others; partake; as to participate in a discussion.' Nothing in the definition, or in the common use of the word confines it to those who are active in navigating balloons or aeroplanes and to exclude those who are inactive occupants of such vessels."
In Vance on Insurance, (2d ed.). page 901, 269, it is said: "If the policy excepts the risk of the insured `while participating in aeronautics,' his injury or death on account of riding as a passenger in an aeroplane is generally held to be within the exception, but not so if the language of the exception is `while engaged in aviation'."
In the case of Pittman v. Lamar Life Ins. Co.,17 F.2d 370, the Circuit Court of Appeals for the Fifth Circuit held (to quote the syllabus in that case) that: "Assured, killed when struck by airplane propeller blade as he was leaving ship after completing flight, held to have met his death while participating in an `aeronautic activity,' within the meaning of provision of policy limiting insurer's liability to premiums paid." A petition for a writ of certiorari in this case was denied by the Supreme Court of the United States. 274 U.S. 750,47 S. Ct. 764. It is apparent that this case goes much farther than I am now contending in the instant case, as the insured had not operated the airplane which killed him, after he had gotten out of it.
Inasmuch as the text writers on the subject of insurance construe the adjudged cases as I do, I am constrained to register my dissent. *Page 924