Chambers v. Kansas City Life Insurance

BARNARD, P. J.

This is an action to recover death benefits under a life insurance policy containing an Aviation Provision exclusion.

The policy was issued on March 5,1953, to Charles H. Chambers, the plaintiff’s husband. The insured, a licensed pilot, signed the insurer’s “Aviation Exclusion Rider Agreement” authorizing the inclusion in the policy of this aviation provision. This provision, insofar as material here, provides that “If the insured shall die as a result, directly or indirectly, of service, travel or flight in any species of aircraft, or as a result of descending therefrom or therewith,” the amount payable under the policy is to be limited to the amount of the premiums paid, with interest.

On the morning of July 18, 1953, the insured and one

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Bichard Walko took off in a borrowed private airplane from an airport in Los Angeles County destined for Las Vegas, Nevada. This is the last heard of the insured until October 27, 1953, when the remains of his body were found in a desert area known as the Kingston Wash, some 30 or 35 miles from the nearest town of Teeopa. On October 31, the airplane was found by a deputy sheriff about 20 miles from the insured’s remains at a point on the slopes approaching Kingston Peak, this point being about 16 miles southeasterly from the center line of the C.A.A. established radio and flying route from Los Angeles to Las Vegas. The right landing wheel of the plane was sheared off, the right wing was bent upward at a right angle, and the tips of both ends of the wooden propeller were shattered. There was no damage to the interior of the plane.

When the insured’s body was found there was no evidence of predeath injuries, and a deputy coroner testified as an expert that the insured’s death was caused by “exposure, dehydration, exhaustion.” There was evidence that the insured had walked about 20 miles, and his tracks were trailed for about 12 miles and found to follow a horseshoe or looping course. The remains of Walko were found about 10 miles from those of the insured, and there were indications that they had gone some distance together and then separated. There was evidence that the particular area where the plane was found was a series of gulleys and washes covered with rocks and desert vegetation. There was evidence that at the time it was found the airplane had no gasoline in the tank and no radio receiving batteries, but the man who removed the plane late in November testified that he started the motor without putting in gasoline and that there were such batteries. Whether anyone had visited the plane prior to October 31, or shortly thereafter, apparently was not known. There was evidence that in similar desert areas foxes, coyotes, bobcats and rattlesnakes are sometimes seen but a witness testified that he had never seen any rattlesnakes in this general area, that he had found evidence only of coyotes there, and that he had never known a coyote to attack a live human being. There was. evidence that animals had torn away the flesh and muscles from the body of the insured and evidence of small punctures on the skin of his lower legs. There was evidence that some man-made habitations and works existed in nearby areas, and the insured had passed within 2% miles of a water supply in the course of his walk. There was evidence that the insured