(dissenting).
This dissent is respectfully submitted.
On the morning of his fatal flight the pilot called the FAA Flight Service Station in Midland at 7:55. He received information of IFR conditions not only locally but also throughout the entirety of his contemplated flight. By 9:20 a.m., the time of his departure, the local weather had cleared somewhat to VFR conditions. The forecast, however, was for continued IFR conditions throughout most of his flight and at his destination. According to the stipulation the forecast proved accurate for only the first one third of his flight was in VFR conditions. The next one third was in probable IFR conditions and the final one third in definite IFR conditions.
The pilot was rated and qualified for flight in VFR conditions. He was not, however, rated or qualified for flight in IFR conditions. Indeed, it was stipulated that he was negligent in operating the aircraft under conditions requiring instrument pilot rating, in failing to communicate to ascertain weather conditions in the area, in failing to return to the point of his departure or alternative airports where VFR conditions existed, and in flying into an area where the weather was such that IFR flight rules existed with full knowledge of the existing inclement weather conditions.
The essential question posed by the majority is whether the pilot was “properly rated for the flight” that ended in his death and the deaths of his two passengers. The majority first considers “the flight” that was undertaken. Citing National Insurance Underwriters v. King Craft Custom Products, Inc., 368 F.Supp. 476 (N.D.Ala. 1973), aff’d per curiam, 488 F.2d 1393 (5th Cir. 1974), the majority concludes “that ‘the flight,’ as used in this pilot warranty clause, refers to the entire time the aircraft is in flight; and ‘the flight’ must be looked at as a whole, rather than in segments, in determining its IFR or VFR character.” This writer respectfully disagrees. It may well be that under some circumstances a pilot can be “properly rated” for one segment and not another.
The majority next poses its remaining question, “whether the flight of the Rogers aircraft in this case was a VFR flight, for which the pilot was properly rated, or an IFR flight, for which he was not.” The majority then responds to its own question by stating that the answer depends on a particular point in time at which the status of the entire flight will be determined. The majority then concludes that the entire flight will be characterized as of its inception.
It is important to follow the reasoning of the majority: first, in determining the character of the flight as VFR or IFR it will be looked at as a whole; and, second, that determination (of the whole) will be based on the conditions (VFR or IFR) at the inception of the flight only.
The policy, however, defines “in flight” as being from the time the aircraft moves forward in taking off, while in the air, and until the aircraft completes its landing. The policy language makes it clear that the flight contemplated is the entire travel, from the beginning to the end, and that the *765pilot is therefore required to be properly rated for all segments of the flight. According to the stipulation here, the pilot flew directly into IFR weather, a condition of which he had been advised before the flight began and a condition of which he had full knowledge. Moreover, he voluntarily pursued his flight in IFR conditions rather than turn back and, finally, he crashed disastrously in IFR conditions near Quemado.
Under the circumstances of this case, the pilot was not “properly rated for the flight” and consequently this writer would agree with the majority of the court of civil appeals.
POPE, J., joins in this dissent.