(dissenting).
As pointed out in the majority opinion, the question to be decided is whether Ben A. Cash is entitled to recover on a policy of insurance for damage to an airplane which crashed while being piloted by one T. D. Brown. Treated by the parties as controlling is a “Pilot Endorsement” which is attached to the policy and provides:
“It is agreed that coverage provided by this policy with respect to any aircraft specifically and individually described therein shall not apply while such aircraft is in flight unless the pilot in command of the aircraft is a person named below, or a person meeting the qualifications set forth below :
Ben A. Cash
[4½ inches of blank space.]
Nothing herein contained shall vary, alter or extend any provision or condition of the policy other than as above stated.”
The name “Ben A. Cash” is typed. All of the rest of the endorsement quoted is a printed form.
It is apparent from the endorsement that the parties had “agreed” that coverage was not afforded in the circumstances present here unless the plane was being piloted at the time by “a person named below” or by “a person meeting the qualifications set forth below.” The printed form was thus prepared for use if coverage was to be provided in either or both of the alternative pilot situations, and one seeking insurance had a right to decide whether he wished coverage in only one or in both of the situations. Once that decision was made, it was the duty of the insurer to complete the printed form to provide the coverage agreed upon. Positive action on the part of the insurer in completing the form by naming “a person,” or by setting forth “qualifications,” or both, was essential to a determination of whether coverage existed when a particular person was piloting the airplane. Thus, if the parties intended to provide coverage while the plane was being piloted by a person meeting certain qualifications equal or superior to those of Cash, and the qualifications were set forth in the space provided therefor, there would have been no need to name Ben A. Cash and thus to provide expressly for coverage when he was piloting the airplane. A different situation would be presented if Cash did not meet the qual*916ifications set forth and the parties wished, nevertheless, to provide coverage when he was piloting. Surely, in the latter situation, with Cash unnamed, the court would not hold that coverage was provided when he was piloting the plane just because he was a licensed pilot and purchased the insurance and a failure so to hold would render the first printed alternative meaningless; and, yet, that is almost the exact holding being made in this case in a converse situation.
There could well have been any number of reasons why the insurer did not set forth qualifications and thus provide coverage when some person other than Cash was piloting the plane. Perhaps the premium would have been greater and Cash preferred not to pay it. Perhaps the parties were unable to agree upon the nature and extent of the qualifications to be set forth. Perhaps the insurer was unwilling to underwrite the risk with open-end coverage based entirely on professional qualifications and with no regard for personal habits. Perhaps the parties agreed upon qualifications but the insurer negligently failed to set them forth in the endorsement. We cannot know why qualifications were not set forth because neither party has sought to tell us by affidavits, depositions or other summary judgment proofs in this summary judgment proceeding.
The court holds, nevertheless, and without any supporting evidence whatever, that the parties agreed to coverage while the plane was being piloted by any person with qualifications similar to or greater than those of Cash. Aside from the fact that with that agreement there could be no sensible reason for naming Cash, the necessary effect of the holding by the majority is that the parties agreed upon qualifications but that the insurer failed, negligently or otherwise, to set them forth in the space provided therefor. If that be the fact, the only proper way to achieve the result reached by the court is through a suit for reformation. Reformation should not be ordered in the name of interpretation or construction.
I would reverse the judgments of the courts below in so far as they award Cash a recovery on his cross action on the insurance policy and offset the same against INA’s recovery on the note. In its motion for summary judgment INA sought a decree that Cash take nothing on his cross action. The motion in this respect was overruled. I would not grant the motion here inasmuch as I believe that a remand should be ordered for further development of the evidence and in the interest of justice. I would sever the cause on the cross action and would remand the same to the trial court for trial. I would modify and affirm the judgment for INA on the note, awarding a recovery for the full amount due thereon. I would then assess all costs against Cash.
WALKER, GREENHILL and STEAK-LEY, JJ., join in this dissent.