Federal jurisdiction in this consolidated action depends solely upon diversity of citizenship. The appellant asks a declaratory judgment against the appellee with reference to two life-insurance policies issued by it on the life of Sumpter Smith. Each policy is in the sum of $5,000, and each contains a provision limiting the liability of the insurer in respect to death resulting directly or indirectly from operating or being in or on, or riding in, any kind of aircraft, whether as a passenger or otherwise, the provisions being as follows: “If any claim shall arise under this policy, or any policy issued in exchange therefor, by reason of the death of the insured and if such death shall have resulted directly or indirectly from operating or being in or on, or riding in, any kind of aircraft, whether as a passenger or otherwise, the liability of the company under such policy shall be limited to the reserve less any indebtedness thereunder at the date of death of the insured, any other provision of such policy to the contrary notwithstanding. This limitation of liability shall also apply if this policy or any policy issued in exchange therefor becomes paid-up by its terms or is continued in force in accordance with its non-forfeiture provisions.”
The proceeds of said policies, in the event of the death of the insured, and subject to the terms and conditions of the policies, are payable to the appellee. The appellant tendered into court the calculated amount of its alleged limited liability, which is not' here in dispute. The burden of proof was on the appellant to establish the fact, by a preponderance of the evidence, that the insured’s death resulted, directly or indirectly, from a cause within the exclusionary clause of the policy (above quoted), which provides for a limitation of the insurer’s liability if death results from an aviation hazard.
The fact that the insured is dead is not in dispute; but the issue here, and before the jury in the trial court, is and was as to the time and manner of his death, there being no living witness who saw him die. When last seen, about.6:30 A. M. on January 24, 1943, he was starting in a plane on a trip from Puerto Rico to Trinidad. When the plane in which he was riding was last seen, it was entering a storm front in the open sea, flying at an elevation of 1100 feet when it had been directed to fly at 9000 feet. *513It was a land-based plane, not equipped with life preservers; if it went down, it could not possibly have remained afloat but a few minutes; and its occupants could not have survived the perils of the sea but a short time. There is no evidence that any of them has ever been seen since that time. This was about 11:30 A. M. on January 24, 1943, and the circumstances exclude every other reasonable hypothesis .except that the insured died on that date while riding in that aircraft.
The jury’s finding that the insured met his death on January 24, 1944, is wholly unsupported by any substantial evidence or any reasonable inference therefrom. It is not necessary that the proof exclude every possible hypothesis except that of death from operating or riding in an aircraft. The jury is not permitted to enter the field of conjecture in order to determine the cause of death. This same aviation hazard was involved in Barringer v, Prudential Ins. Co., D.C., 62 F.Supp. 286. There the case was submitted to the court without a jury; there the evidence was held sufficient to support a finding that the insured’s death resulted from riding in an’ airplane, and the court so found. The same issue was submitted to a jury in this case, but the jury made a contrary finding. The question here is not whether the evidence would have supported a finding that death resulted from riding in an airplane, but whether it will support a finding that death resulted from any other cause. Consequently, there is no conflict between our decision in the case at bar and the court’s decision in Barringer v. Prudential Ins. Co., supra. In the latter case, the court said, 62 F.Supp. at page 288: “If the evidence would support the finding that the insured’s death was accidental, and I think there is no doubt that under the rule laid down by the decisions referred to it would, then it must also support the finding that the accident consisted in the plane’s falling into the ocean. That, it seems to me is not only a reasonable inference, but the only reasonable one. * * * Various more or less fantastic explanations of disappearance of plane and passengers might 'be suggested but, with practically no land on the direct route to Trinidad, I do not see how there could be much doubt in the mind of any reasonable person that it came down in the sea. At any rate it is not necessary to preclude all other possibilities.”
The judgment appealed from is reversed; and, since the appellant made a motion in the court below for a directed verdict, and also a motion for judgment notwithstanding the verdict, both of which were taken under advisement by the court and subsequently overruled, judgment will be granted here for the appellant on the motion notwithstanding the verdict. 28 U.S. C.A. § 2106 of the New Judicial Code; Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 67 S.Ct. 752, 91 L.Ed. 849; Massachusetts Mutual Life Ins. Co. v. Pistolesi, 9 Cir., 160 F.2d 668.
Reversed and rendered.