concurring:
There was testimony of considerable enemy submarine activity in the area over which the plane flew and that the submarines had turned the tables on the planes and were firing on the planes. The jury could have found from the testimony that a particular B-24 plane in this area got a shell from a submarine fired into its nose between Christmas of 1942 and New Year’s of 1943, less than a month before the plane bearing Colonel Sumpter Smith disappeared. I think that we should take judicial knowledge that at about this time the German submarines were venturing very close to our shores, coming into the Gulf of Mexico and considerably nearer than the waters between Puerto Rico and Trinidad. •If this plane had been lost over Germany I take it that no one would argue that the insurer had met its burden. I think that the evidence established enough enemy activity in the area traversed by this plane to make a jury question and I concur in the affirmance.
STRUM, Circuit Judge, dissenting on rehearing:
With deference to the views of my colleagues, I adhere to the original opinion and judgment of reversal, which I think are correct and should stand.
That the plane was shot down by a hostile submarine is both fanciful and speculative. The possibility of hitting an airplane flying at a high altitude, at 200 miles per hour, with a fixed projectile fired from the deck of a submarine rolling in the sea, is too remote to be accepted as the basis of a verdict, in the absence of positive and credible testimony to that effect, even though there is evidence that submarines were taking “pot shots” at airplanes, and though there is inconclusive and unpersuasive testimony that another plane may have been struck by a projectile so fired at some other time and place. What the circumstances of that incident were, is not disclosed. That it happened here rests on nothing more substantial than conjecture.
That the occupants of the plane, including the insured, survived the crash only to die of starvation or disease on some remote and uninhabited island, is also more fanciful than real. The existence of no such island is pointed out along the route to be followed by the plane, nor is there anything more than mere conjecture to ‘ support an inference that insured died in this manner.
That the plane when last seen was entering a tropical storm area flying at an altitude of 1100 feet when its flight plan called for an.altitude of 9000 feet, is certain. In the circumstances shown by the evidence, the only reasonable and rational conclusion is that the plane fell into the ocean and its occupants, including the insured, lost their lives either from the force of the crash, or by drowning.
As stated in the original opinion, “The jury is not permitted to enter the field of conjecture in order to determine the cause of death.” The submarine theory, and the starving survivor theory, are more fanciful than real. The bad weather and low altitude of the plane when last seen, are facts. Conclusions drawn from the evidence, even by juries, must rest upon probability, not mere possibility.
In my opinion, the defendant insurance company has successfully borne the burden of establishing that insured’s death was within the aviation exception clause.
For these reasons I respectfully dissent from the judgment of affirmance on rehearing.