I respectfully dissent.
The majority opinion rests upon the Clapper case, 1946, 81 U.S.App.D.C. 246, 157 F.2d 76. If that decision is sound it should be followed; if not it should be disregarded.1
Construing the same policy provision under essentially identical facts Judge Groner, in the Clapper case (81 U.S.App.D.C. 246, 157 F.2d 77), said:
'It is quite true that no case is cited and we have found none in which the liability exclusion-clause is in precisely the same words as in the present case, but cases, state and federal, construing language more or less similar may be cited in large numbers. In such cases the holding was that the clause 'participating or participation in aeronautics,' or 'engaged in aeronautic operations, activity or expeditions,' does not cover the case of a person who had no other relation to the flight than as an ordinary passenger.
'Here the language of the policy is, as we have pointed out, somewhat different, and as it is written it relieves the insurer of liability in consequence of death resulting from-an aeronautic flight. If the words used had been 'resulting from-a flight,'-the case would be simple, for it is obvious that the death of Mr. Clapper was in consequence of-a flight.2 The actual language, however, is 'an aeronautic flight,' and the inclusion of the word 'aeronautic' when considered in the light of its accepted meaning involves a different problem. We think undoubtedly the parties intended to use the phrase in the sense generally recognized in air travel. Webster's New International Dictionary defines the word aeronautics as 'The science that treats of the operation of aircraft,' and the word aeronautic as 'Pertaining to aeronautics or aeronauts.' Certainly, as appellee *Page 316 concedes, insured on the occasion of his death was not 'participating' in aeronautics. Moreover, if the flight to be within the exemption of the policy must be one pertaining to the science of operating aircraft, it follows that a mere passenger in an airplane is outside its provisions. For, as was said by the Eighth Circuit, 'A mere passenger has no part in the art of the aeronaut and does not study, apply, or advance the science of aerial navigation."
It seems clear to me that Judge Groner was misled by cases construing aviation exclusion clauses in insurance policies using the words 'participating' or 'engaged' in 'aeronautics,' which held that since a mere passenger took no part in the operation of the plane he was not 'engaged' or 'participating' in 'aeronautics.'
In my opinion there is a fundamental distinction between those cases and the Clapper and this case. The difference is that the present policy has no requirement that the insured participate or engage in an aeronautical flight but only that his death be the result of such a flight.
A policy which excluded liability for death of an insured resulting from an atomic blast, a rather technical operation, would, or at least should not receive the same construction as a policy excluding liability for death of the insured while participating or engaged in the operations producing the blast.
In my opinion the exclusion clause under consideration is plain, simple and unambiguous. The word 'aeronautic' is descriptive of and modifies the word 'flight.' 'Aeronautics' is defined as 'the science that treats of the operation of aircraft.' The word 'flight' as here used necessarily means the act or mode of flying.
If flying in a powered aircraft operated by a licensed pilot who is presumably skilled in the science of aeronautics is not an 'aeronautical flight' then the words, to me, are devoid of meaning.
Since, in my opinion, Mr. Reed's death resulted from an aeronautical flight, judgment should have been for appellant.
In Faron v. Penn. Mutual Life Ins. Co., D.C., 77 F. Supp. 228, 231, the Court after referring to the Clapper case said: `Confronted by this authority the court will resolve its personal doubts regarding the meaning of Policy No. 1994456 and order judgment to be entered in favor of plaintiff.'In the case of Braden-Sutphin Ink Company v. Aetna Life Insurance Company, No. 18991 Law, in the United States District Court for the Western District of Ohio, Eastern Division (1938, no appeal), Braden, a passenger was killed in a plane crash and in holding the company not liable for double indemnity under the same exclusion clause we have here the Court said: `That the fact may be, or that the Court may believe, that airplane flights may be less hazardous today than in 1923, when the policy was issued, cannot extend the coverage or the hazards insured against. It is true that airplane flights were regarded as quite hazardous in 1923, and the double indemnity provision of the policy expressly excluded death from air flights as an event calling for double response. I agree that the matter should be resolved favorable to the insured (beneficiary) if there is doubt about the meaning or if the court could conclude as a matter of law that the flight in which plaintiff's decedent met his death was not of the kind excluded by the provision of the policy. It may be conceded that the descriptive terms for flight by airplanes have changed over the years, but, as I see it, `an aeronautic flight' in 1923 was nothing different than the transportation by plane of the present day."
This in spite of the fact that the word flight has many meanings: A flight of arrows, of stats, of airplanes; the act or mode of flying; mental agitation; to flee, as from a bumble bee, etc., etc.