(dissenting).
I respectfully dissent.
I would hold the parties to the plain meaning of everyday words used in their ordinary sense in an unambiguous contract. I decline to aid and abet in the verbocide of the good word “passenger”.
We do not have here a question of the applicability of a broad, established principle of state law. We have a narrow little question turning on the extension to this case of language of a particular insurance policy interpreted by a Texas court in a single case, Continental Cas. Co. v. Warren, 1953, 152 Tex. 164, 254 S.W.2d 762. When a litigant, waving Erie and pointing to a single precedent, demands a theirs-but-to-do-or-die decision that “black” is “white”, “yes” is “no”, or a “passenger” is a pilot operating an aeroplane in flight, the certainty that the single precedent does indeed compel an Erie decision should be a lot more evident than is evident to me in this case.
I would distinguish Warren. In that case the policy was ambiguous in several respects. There is no ambiguity here, unless it can be said that thanks to Warren the word “passenger” is always ambiguous and may in an insurance policy always be taken to include a “pilot”. A review of the opinion shows that Warren stands for no such proposition. Its holding is rigorously restricted to a construction of a policy that, read as a whole, was equivocal.
*489The important fact in Warren was that the policy was issued to a business firm and was intended to insure all the firm’s employees. The Texas Supreme Court emphasized this fact at the start and throughout its opinion:
“We start with the initial broad statement that ‘every officer, employee or guest’ of the policyholder is, in the very words of the insurer itself, an ‘insured person’. This naturally suggests to the ordinary reader that all of the class mentioned— which, of course, includes the pilot— is insured for such risks and with such limitations as may follow in the rest of the policy.”
Thus, in Warren the pilot was clearly an “insured person” in a large group all of whom apparently were meant to be covered under the policy. The conflict between this provision and the clause dealing with the injury covered produced an ambiguity absent here.
After pointing out again that the pilot was an “employee” and “in the insurer’s own words ‘an insured person’ ”, the Texas Supreme Court said that the question was whether it is “beyond the broad pale of reason” to say that such an insured person is excluded by succeeding provisions in the policy. The majority, through Chief Justice Garwood, found “no such clear exclusion”; the insurer had to bottom its position on the definition of risk or injury covered. This definition allowed recovery for injury “sustained by the insured person as a consequence of (1) riding as a passenger in, (2) boarding, (3) alighting from, (4) making a parachute jump from (for the purpose of saving his life) or (5) being struck by” the plane. (Numerals supplied.) The court reasoned that the pilot “would be covered because (a) he is ‘an insured person’ under the initial paragraph and (b) the insured risk came to pass” — unless “the mere word ‘passenger’ * * * excluded him.” The court alluded to broad definitions of “passenger”, but it did not base its holding on the broadness of the meaning of the word. On the contrary, the court “conceded that the full phrase, ‘riding as a passenger in,’ does suggest a meaning of ‘passenger’ as a non-operative of the plane.” The court relied on the policy as a whole: “other provisions of the policy have logical bearing on the intended coverage”. Going back to the enumeration of the five risks, the court found that, “grammatically speaking, any requirement of the insured person being a passenger in the sense of non-operator applies only to the ‘riding’ risk and to none of the other four.” The court said:
“Thus keeping ‘as a passenger’ in the place where the insurer itself firmly located it, the result is that as to all the five risks, except possibly that of ‘riding,’ every non-passenger ‘insured person’ would be covered:, if he were injured by the risk, and this, of course, includes the pilot as an ‘employee’ of the policyholder and accordingly ‘an insured person.’ If we say that the pilot is a non-passenger and thus excluded from the ‘riding’ risk, we reach the extraordinary result that he is covered, for example, for a parachute drop, and yet not covered for a crash of the plane. * * * If a construction of non-liability under one part of a contract would operate to produce an absurd result from the contract as a whole, that fact has clear logical relevance to whether the construction should or should not be adopted. It is interesting to note that, on the oral argument, the insurer’s only explanation of this apparent oddity of covering the pilot for one risk and not another was that ‘as a passenger’ must be read into each separately enumerated risk. If that is so, the insurer is placed in the rather clearly untenable position, that no ‘insured person’ — plane operator or otherwise— is insured unless he be a ‘passenger.’ If it is not so, we have a policy that both excludes and includes the pilot, ' unless we construe ‘passenger’ in the sense of ‘occupant’ and thereby in-*490elude the pilot and other ‘insured persons’ for all the risks.”
In view of the language in the Continental Casualty Co. policy, it is not surprising that the Texas court resolved the ambiguity in favor of the “insured person”, the employee. The case stands only for the proposition that, construing the entire policy, the mere word “passenger” cannot he said to exclude the pilot; the-court did not hold that a “pilot” is a “passenger”.
That, however, is what the plaintiff would have this Court hold, notwithstanding an otherwise unambiguous policy. In this case, when Robert Delaney, the insured, made his application for insurance, he was a lieutenant in the United States Army. He had applied for Army aviation training. Delaney filled out and signed an insurance form, “Request for Amendment” for a provision entitled, “Limitation Due to Aviation Hazard”. This amendment contains the critical language:
“If this policy shall become a claim by death of the insured due to any service, training, travel, flight, ascent or descent in, on or from any species of aircraft at any time, except death resulting from travel as a passenger on an aircraft owned and operated by the United States Government or as a passenger on a licensed aircraft operated by a licensed passenger pilot on a scheduled passenger air service regularly offered between specified airports, the liability of the Company under this policy shall be limited to the premiums paid hereunder or to the then net reserve at time of death, if greater; any provision in this policy to the contrary notwithstanding * * * ”
The Request for Amendment also contains a statement reading:
“I certify that I have done no flying except as a passenger under conditions outlined since-none
Typed on the front and back of the policy were the words “Limitation Due to Aviation Hazard included”.
At the time of his death, Lieutenant Delaney was the pilot and sole occupant in an official Army aircraft under the operational control of the Second Armored Division, Fort Hood, Texas. The official Army report stated as the cause of his death: “Injuries. Officer was pilot of an aircraft which crashed while on a night training flight”. He was a “regular” officer “on duty”, receiving “incentive pay for flying”.
In the Warren case, the Court could not have arrived at the conclusion it reached without finding that the policy as a whole was ambiguous. The insurer’s construction of the one word “passenger” conflicted with a reasonable construction of other provisions and was inconsistent with the purpose and meaning of a policy intended to cover all employees. On the other hand, here the critical words are clear; the clause does not conflict with other policy provisions; the insurer’s view of the meaning of the clause is consistent with the policy and the construction the insured himself placed on the policy; there is good reason to distinguish between a training flight piloted by Delaney, an inexperienced pilot who had requested training, and a flight as a passenger on a government operated plane or a scheduled passenger plane. There is therefore no occasion to resort to the familiar principle that equivocal words should be construed against the insurer.
There is not the shadow of a doubt, in my mind, that the parties said and intended to say that the policy excluded coverage for death resulting from injuries to an Army pilot in a training flight. We have no license to change the contract. Here, Warren is only a ghost; it casts no shadow.
On Petition for Rehearing