Jew Fun Him v. Occidental Life Insurance

DORAN, J. The complaint herein alleges that on June 25, 1942, Clinton Chow, plaintiff’s son, applied to defendant company for an endowment life policy which was issued on July 6, 1942. According to the appellant’s brief, the insurer therein “agreed, if the insured should die before the end of said Endowment Period (at age 50), to pay $3,000 to plaintiff; that Clinton died on November 1, 1945”; that defendant refused to pay any sum whatever except $450.64 to be paid upon the execution by plaintiff of a full release of all liability, and that no part of the $3,000 has been paid. Neither the original complaint nor a first amendment thereto contains any allegation or suggestion of fraud or unfairness on the part of the insurer. A proposed second amendment refused by the trial court, did, however, charge fraud on the part of the insurer.

The respondent insurer defended the action upon the basis of a certain “War and Aviation Exclusion Clause” contained in the policy which, among other things, limited the insurer’s liability to a return of the premiums paid, “if death of the insured result, directly or indirectly, from service, travel or flight in any kind of aircraft except as a fare-paying passenger in a licensed commercial aircraft ... on a regular passenger air route between definitely established airports, both of which are within the Home Areas.” The term “Home Areas” was defined as meaning “the forty-eight states of the United States, the District of Columbia and the Dominion of Canada.”

From appellant’s sworn proof of loss it appears that the insured, Clinton Chow, a member of the armed forces, died in an airplane accident at Karlsruhe, Germany. Therefore, as stated in respondent’s brief, “such death fell squarely [248]within the exclusion clause.” The $450.64, which the insurer offered to pay, represented the return of premiums paid, plus interest,—the limit of liability under the provisions of said exclusion clause.

After the ease was at issue both parties moved for summary judgment, representing that no triable issue of fact existed and that the sole issue was one of law, namely, whether the War and Aviation Exclusion Clause was an effective part of the policy. The trial court granted defendant’s motion for a summary judgment but on learning of a recent decision in Beddington v. California Western etc. Ins. Co., 30 Cal.2d 157 [180 P.2d 673] (May, 1947), relating to the applicability of a similar exclusion clause, reopened the matter for further argument. Later, however, summary judgment for the defendant was again granted, from which plaintiff has brought the present appeal.