Petition for Writ of Certiorari — Great American Indemnity Co. v. Saltzman

INDEX

Page

Opinions below l

Jurisdiction 2

Questions presented 2

Statement 4

Reasons for granting the writ 6

Conclusion 14

Appendix 15

CITATIONS

Cases:

Ball Engineering Co. v. J. G. White & Co., 250

USS. 46, 39 Sup. Ct. 393, 63 L. Ed. 835 7

Conner v. Long, 104 U.S. 228, 237, 238, 26 L.

Ed. 723, 727 7

Galloway v. Marathon Ins. Co., 220 Ark. 548, 550,

248 S.W. (2) 699, 700 (1952) 10

Hardware Mutual Casualty Co. v. Mason-Moore-

Tracy, Inc., 194 F. (2) 173 10, 11

Jacobson v. Aetna Casualty & Surety Co.,

233 Minn. 383, 46 N.W. (2) 868, 872 10

Lee v. Aetna Casualty & Surety Co., 178 F. (2) 750 11

Life & Casualty Ins. Co. of Tenn. v. De Arman,

192 Ark. 11, 17, 90 S.W. (2) 206, 208 10

Meyers v. Meyers, 214 Ark. 273, 216 S.W. (2) 54... 7

A. T. Morris & Co., Inc., v. Lumber Mutual Casualty

Ins. Co., 163 Misc. 715, 298 N.Y.S. 227, 230... 9

ii

Morissette v. U.S., 342 U.S. 246, 272, 273, 72 Sup. Ct.

240, 96 L. Ed. 288, 305 7

Neufield v. United States, 118 F. (2) 375, 388

(C.A., D.C., 1941) 8

Owens v. The Ocean Accident & Guarantee Cor-

poration, Ltd., 194 Ark. 817, 822, 109 S.W. (2) 928. 12

Quality Motors v. Hays, 216 Ark. 264, 225

S.W. (2) 326 7

Ray v. Light, 34 Ark. 421 7

Red Ball Motor Freight v. Employers Mut.

Liability Ins. Co., 189 F. (2) 374 12

Stone v. U.S., 167 U.S. 178, 182, 17 Sup. St. 778,

42 L. Ed. 127 7

Thomas v. Westbrook, 206 Ark. 841, 177 S.W. (2) 326. 7

United States v. Curzio, 170 F. (2) 354, 357

(C.A. 3, 1948) 8

United States v. Ute Coal & Coke Co., 158 F. 20, 21,

22 (C.A. 8, 1907) , 7

Texts:

Restatement of the Law, Torts, Vol. 1, Sec. 221,

Comment on Clause (a) 8

Webster’s New International Dictionary,

Second Edition 9

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1953

GREAT AMERICAN INDEMNITY

COMPANY OF NEW YORK, Petitioner,

Vv.

B. N. SALTZMAN, Respondent.

PETITION For A Writ oF CERTIORARI TO THE UNITED

STATEs Court OF APPEALS For THE

E1cHTH Cricuir

The petitioner, Great American Indemnity Company of

New York, prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the Eighth

Circuit entered in the above case on June 18, 1954.

OPINIONS BELOW

The findings of fact and conclusions of law of the District

Court (R. 21-36) are not officially reported. The opinion of

the Court of Appeals is not yet officially reported and is set

forth in the appendix, infra, pp. 15-22.

2

JURISDICTION

The judgment of the Court of Appeals (App., p. 23)

was entered on June 18, 1954. By order dated July 15, 1954,

the mandate was stayed for a period of thirty days to permit

the filing of this petition. The jurisdiction of this court is

invoked under 28 U.S.C., Section 1254 (1).

QUESTIONS PRESENTED

The respondent, without permission, either express or

implied, from the owner, climbed into the cockpit of an air-

plane that was parked at a public airport at Flippin, Arkansas.

Respondent examined the plane and its operating controls for

several minutes and then intentionally engaged the engine

starter, following which the engine started, the plane moved,

and, the respondent being unable to locate the brakes, the

plane crashed into an airport hangar. The plane owner re-

covered judgment against respondent for damages to the

plane, which judgment was paid by respondent. This action

was thereafter instituted by respondent, seeking reimburse-

ment under a personal liability policy issued to respondent by

petitioner, under the terms of which petitioner contracted to

pay, subject to certain exceptions and exclusions, liabilities

imposed by law on respondent.

The applicable exclusions read as follows (R. 15):

“This policy does not apply:

¥ (a * * *#

“(b) to the ownership, maintenance or use, includ-

ing loading and unloading, of (1) motor vehicles * * *,

(2) watercraft * * *, or (3) aircraft; * * *

“(e) * * * to injury to or destruction of property

used by, rented to or in the care, custody or control of the

insured;”

3

Two principal questions are presented:

1. Whether respondent’s liability resulted from the own-

ership, maintenance, or use of aircraft, or whether his liability

was for injury to or destruction of property used by him.

2. Whether respondent’s liability resulted from injury to

or destruction of property in the control of respondent.

Both questions were answered in the negative by the court

below, and judgment in favor of the insured was affirmed.

4

STATEMENT

The respondent, B. N. Saltzman, procured from the peti-

tioner a policy of personal liability insurance. The policy was

written for a three-year term at a total premium cost of $28.75.

Ti.e insuring agreement, in so far as is relevant here, was to pay,

subject to the exclusions, conditions, and other terms of the

policy “all sums which the insured shall become obligated to

pay by reason of the liability imposed upon him by law” (R.

15).

The policy is reproduced in the record at Pages 13 to 19.

On Page 2 of the policy (R. 15), under the heading, “Exclus-

ions”, appears the following:

“This policy does not apply:

se (a) * *

“(b) to the ownership, maintenance or use, includ-

ing loading and unloading, of (1) motor vehicles * * *,

(2) watercraft * * *, or (3) aircraft; * * *

“(c) * * *

“(d) * * #

“(e) * * * to injury to or destruction of property

used by, rented to or in the care, custody or control of the

insured;”

The facts are stipulated (R. 8-12). Dr. Saltzman, a

physician, of Mountain Home, Arkansas, owns a small plane

and is an aviation enthusiast. On November 28, 1951, Dr.

Saltzman was at the Flippin, Arkansas, airport when Bruce

Campbell and Frank Hilton landed at the airport in a Ryan

Navion airplane owned by the Veterans of Foreign Wars. After

Campbell and Hilton had deplaned and left the airport, Saltz-

man, prompted solely by curiosity, walked over to the plane

and began inspecting it. Finally he climbed into the cockpit or

5

cabin and began an examination of the various instruments,

switches and controls, and manually operated many of the con-

trols. Saltzman had neither requested nor received permission to

enter the plane. After attempting to familiarize himself with the

operation of the plane for several minutes, Saltzman pressed

the aircraft starter. The engine started and the plane began

to move. Saltzman was unable to stop the plane and it crashed

into a hangar some 90 to 100 feet distant from the spot where

the plane was parked, causing the damage for which he seeks

reimbursement in this action. Saltzman intentionally pressed

the starter button with full knowledge that it was the starter,

but he did not intend actually to fly the plane. Having con-

sidered the purchase of such an aircraft, he availed himself of

the opportunity to physically inspect and examine one.

Saltzman notified the petitioner of this incident and of

the suit later instituted against him by the Veterans of Foreign

Wars to recover for the damage to the plane. Petitioner de-

nied coverage under the policy and refused to defend the action

on behalf of Saltzman. Saltzman thereupon hired his own at-

torney. Judgment was rendered against Saltzman and in favor

of the Veterans of Foreign Wars in the sum of $3,569.58, which

sum Saltzman paid in satisfaction of the judgment. He also

paid his attorney a fee of $1,256.00 for services rendered in de-

fending that action. To recover these sums Saltzman instituted

the present action against petitioner in the United States Dis-

trict Court for the Western District of Arkansas (R. 1-5).

Jurisdiction was based on diversity of citizenship, 28 U.S.C.,

Sec. 1332. The cause was submitted to the court without a

jury upon the agreed stipulation of facts (R. 8) .

The trial court held that Saltzman’s liability to the Veter-

ans of Foreign Wars was a liability covered by the policy and

rendered judgment against the petitioner for $4,825.58 (the

total of Saltzman’s expenditures in connection with the VFW

suit) , statutory penalty of $579.07, and $750 as attorney's fees

6

in the present action, a total judgment of $6,154.65. This

judgment was entered on October 29, 1953 (R. 36).

The petitioner appealed. The Court of Appeals affirmed,

ruling (1) that at the time of the occurrence resulting in dam-

age to the plane respondent Saltzman was not using it or at-

tempting to use it (App. p. 18), and (2) that the plane was

not in the “care, custody, or control” of respondent because

these words connote a lawful situation, whereas respondent was

“a mere trespasser without any shadow of right to do what he

was doing” (App. p. 22). The Court of Appeals ruled that the

respondent Saltzman could not have recovered under the policy

had he sought and obtained permission from the owner of the

plane to do what he did because under such circumstances he

would have been in “control” of the plane, but, here, inasmuch

as respondent took the plane from the owner’s possession with-

out the owner’s consent he was in fact a trespasser and therefore

not in “control” of the plane.

REASONS FOR GRANTING THE WRIT

1. The opinion of the court below recognizes that re-

spondent was a trespasser—that is, that he had taken the plane

without right from the possession of the owner (App., p. 21).

This observation of fact clearly is required under the stipula-

tion of facts upon which the case was submitted to the trial

court (R. 10). Yet, despite the admitted fact that respondent

had physical possession of the plane to the exclusion of all

others, the court below held that the plane was not “property

* * * in the * * * control of the insured”. The lower court

held that in order for the insured to be in control of the plane

consent of the owner was required. We submit that this rul-

ing is in conflict with basic principles of the common law, de-

cisions of other Courts of Appeal, and applicable decisions of

this court and of the Supreme Court of Arkansas. The ques-

tion presented is an important one. Although the circum-

7

stances giving rise to the present action are unusual and are

not likely to recur, the principle announced by the court has

a far-reaching effect and results in the imposition of large and

unanticipated liabilities in connection with thousands of poli-

cies previously issued by the petitioner and other companies

engaged in the same type of business. If the word “control” is

construed to mean “control with the consent of the owner”,

then one who steals a motor vehicle and damages it is in a

better position with respect to insurance coverage than he

would have been had he borrowed the vehicle with the owner's

consent. We submit that the word “control” has been given a

new and novel definition wholly inconsistent with precedent

established by other federal Courts of Appeal and by this court.

Trespass in connection with personal property is tanta-

mount to conversion. See Conner v. Long, 104 U.S. 228, 237,

238, 26 L. Ed. 723, 727; Stone v. U. S., 167 U.S. 178, 182, 17

Sup. Ct. 778, 42 L. Ed. 127; United States v. Ute Coal & Coke

Co., 158 F. 20, 21, 22 (C.A. 8, 1907). A conversion consists

either in the appropriation of the thing to the party’s own use

and beneficial enjoyment or in its destruction, or in exercising

dominion and control over it in exclusion or defiance of the

owner’s rights. Ray v. Light, 34 Ark. 421; Meyers v. Meyers,

214 Ark. 273, 216 S.W. (2) 54; Quality Motors v. Hays, 216

Ark. 264, 225 S.W. (2) 326; Thomas v. Westbrook, 206 Ark.

Ark. 841, 177 S.W. (2) 326.

One who uses the plant and equipment of another with-

out authority is guilty of a conversion. Ball Engineering Co. v.

J. G. White & Co., 250 U.S. 46, 39 Sup. Ct. 393, 63 L. Ed. 835.

The respondent, by physically taking possession of the plane

and applying it to his own use, was guilty of a conversion, even

though he did not intend to abscond with it. Morissette v.

U. S., 342 U.S. 246, 272, 273, 72 Sup. Cr. 240, 96 L. Ed. 288,

305.

8

Restatement of the Law, Torts, Vol. 1, Sec. 221, Comment

on Clause (a), states that a conversion is the dispossession of

another of his chattel by assuming physical control over it with

the intention of exercising such control on his own behalf.

It is apparent from each of the foregoing definitions that

the respondent converted the plane that subsequently was dam-

aged, and in converting it he necessarily assumed control there-

of.

We are not here concerned with the word “possession”

and its varied entanglements, but merely with the word “‘con-

trol”. The issue is whether the plane was “property * * *

in the * * * control” of respondent.

The word “‘control” does not connote any leave or license

from the owner. A thief is in control of property stolen by

him. “Control” is a physical fact—not a question of intent.

Compare Neufield v. United States, 118 F. (2) 375, 388 (C.A.,

D.C., 1941); United States v. Curzio, 170 F. (2) 354, 357

(C.A. 3, 1948).

The stipulation of facts recites that respondent was in

physical possession of the plane, that he occupied it, that he

manipulated its controls, that he caused it to be put in motion,

and that no one else was in or about the plane or in position to

control the movement of it. The opinion of the lower court

rules that respondent was not in control of the plane because

he had no permission from the owner to do what he was doing.

The opinion recognizes that respondent was a trespasser, a con-

verter, but rules that a trespasser or converter does not “have

control of the property converted”. It holds that had respon-

dent obtained permission from the owner to do what he did

he would have been in control of the plane, but, since he had

no such permission, he was a trespasser and, therefore, not in

control of it. The ruling accords collision insurance coverage

9

to respondent under circumstances clearly not contemplated by

the parties to the insurance contract, and to reach that result

holds that a trespasser is not in control of the property appropri-

ated by him.

The ruling recognizes and gives effect to the exclusion

clause where the insured controls property by consent of the

owner, but refuses to recognize the exclusion where the in-

sured takes possession of property by trespass. In order for

property to be in control of the insured, according to the ruling

of the court below, the insured must be in possession by con-

sent of the owner; and if the insured obtains possession by

trespass he is not in control of the property. The meaning of

“control” is illustrated in A. T. Morris & Co., Inc., v. Lumber

Mutual Casualty Ins. Co., 163 Misc. 715, 298 N. Y. S. 227, 230,

as follows:

“They had no care and custody of the theatre prop-

erty as such, nor did they have any control over it in the

sense that a person who has personal property in his posses-

sion, such as an automobile, may be said to have control

over it.”

Webster’s New International Dictionary, Second Edition,

gives this partial definition of “possession”:

“6. * * * in general all legal systems recognize as hav-

ing possession him (as a thief) who has actual physical

control of a thing and holds it for himself * * *,”

The stipulation of facts, though not using the word “con-

trol”, shows that Saltzman had actual physical possession of the

plane and was the only person in or around it, that he personally

energized the engine by knowingly engaging the starter button,

and that he operated or attempted’ to operate the controls of

the plane during the course of its trip from its parking place to

the point where it crashed into the airport hangar (R. 9, 10).

Despite this stipulation the lower court ruled that the plane

10

was not in his control. In so ruling on the meaning of “con-

trol”, the decision of the court below conflicts with the decision

of the Court of Appeals for the Second Circuit in Hardware

Mutual Casualty Co. v. Mason-Moore-Tracy, Inc., 194 F. (2)

173, wherein the court held that the insured, by appropriating

an elevator to its own use for the purpose of helping support a

piece of heavy equipment, thereby damaging the elevator, was

not covered by the insuring agreement because the damaged

property, to-wit, the elevator, was property in the control of

the insured and the insurance contract excluded liability for

damage to such property.

The decision of the lower court also conflicts with ap-

plicable state law. In Galloway v. Marathon Ins. Co., 220 Ark.

548, 550, 248 S.W. (2) 699, 700 (1952), the Arkansas Supreme

Court cited with approval Jacobson v. Aetna Casualty & Surety

Co., 233 Minn. 383, 46 N.W. (2) 868, 872, wherein it is said:

“We are here concerned, therefore, not with the am-

biguity-producing legal concept of constructive possession

but with possession in its basic and ordinarily accepted

meaning, namely, physical control of the property for one’s

own use.”

In Life & Casualty Ins. Co. of Tenn., v. De Arman, 192

Ark. 11, 17, 90 S.W. (2) 206, 208, the court said:

“* * * We are not authorized to lay violent hands upon

and distort the plain and obvious English in which a con-

tract is written so as to include a risk clearly excluded by

the insurance contract.”

2. The lower court ruled that the clauses “the use of air-

craft” and “property used by the insured’ mean the normal

ordinary use of aircraft or property, and that, since insured

did not intend to fly the plane, the liability did not result from

the use of aircraft and was not a liability for damage to prop-

|

Il

erty used by the insured. In so ruling the decision of the court

below conflicts with the decision of the Second Circuit in Lee

v. Aetna Casualty & Surety Co., 178 F. (2) 750.

In the Lee case the court, in construing a similar exclusion

referring to elevators, held:

“As always, the language is to be interpreted by its

purpose, and the purpose was to exclude liabilities oc-

casioned by the insured’s availing itself of an elevator for

the purpose of its business.”

In the case at bar it is stipulated that the insured availed

himself of the aircraft for his own use. The lower court deemed

the Lee case inapplicable because in that case the insured in-

tended to use the elevator in a normal manner. As a matter

of fact, however, the insured in the Lee case never entered the

elevator and did not actually set the elevator in motion. In

the case at bar the insured not only entered the plane, but he

started the motor and did everything necessary to fly it short

of actualy taking it off the ground. That the asserted dis-

tinction is not valid is further indicated by the decision of the

Second Circuit in Hardware Mutual Casualty Co. v. Mason-

Moore-Tracy, Inc., 194 F. (2) 173. There the insured was

employed by a tenant to move a heavy machine from the ten-

ant’s quarters in a building. The insured availed himself of

the landowner’s elevator to help support the machine, which

was being lowered through the elevator shaft by means of a

rope. The court held that the elevator was “property used

by” the insured within the meaning of an exclusion clause in

all respects similar to that in the case at bar. The elevator

was certainly not being used in its normal, regular manner. The

top of the cage had been removed and the purpose of the ele-

vator was to help support the machine that was being lowered

by a rope.

12

The decision of the lower court on this issue also is in

conflict with applicable State law. In Owens v. The Ocean

Accident & Guarantee Corporation, Ltd., 194 Ark. 817, 822,

109 S.W. (2) 928, the Arkansas court attributes to the phrase

“use of an ambulance” consequences having no bearing what-

ever on its operation as a motor vehicle. The court there said:

“Obviously there are lawful and logical uses to which

a commercial vehicle may be put which are not necessarily

incident to its operation as such; yet, an incidental use of

such vehicle might be the predominating cause of loss,

even though, in point of time or distance, it was not the

nearest agency in contact with effect.” (p. 822)

In the case at bar, the damage for which indemnity is

sought was a direct and proximate result of the use of the plane

by insured. Its engine was running and the aircraft was mov-

ing. The insured himself started the engine. This is the very

type of liability the policy excludes, i.e., damage resulting

from the use of aircraft or damage to property used by the in-

sured. The collision in which insured was involved caused

damage to the airport hangar, although recovery for such dam-

age is not sought in this action. Certainly it could not logically

be argued that such damage to the airport hangar did not re-

sult from the use of aircraft.

Likewise, the ruling below conflicts with the decision of

the Fifth Circuit in Red Ball Motor Freight v. Employers Mut.

Liability Ins. Co., 189 F. (2) 374. The issue in the latter case

was whether certain damage resulted from the use of a motor

vehicle. The driver filled the vehicle from a gasoline pump on

his employer’s premises. He left the pump in such condition

that gasoline leaked therefrom, flowed to the street, and thence

down the gutter for several blocks, where it exploded. The

damage caused by the explosion was held to result from use

of the vehicle, although the evidence indicated that the vehicle

was fifty miles from the scene of the explosion. The term

oO

13

“liability resulting from use of a vehicle” was given no such re-

stricted meaning as is given it in the opinion of the court below.

The opinion of the lower court states that if the insurer

did not intend to assume liability it should have excluded “any

conceivable contact” with aircraft. The lower court misap-

prehended the purpose of the insurance contract. It did not

intend to exclude any conceivable contract with aircraft. There

are situations in which the policy clearly extended coverage

for damage to aircraft. As examples, if the insured negligently

discharged a gun or negligently threw a stone or a ball, result-

ing in damage to an airplane, the policy certainly would have

afforded coverage. It is not unusual for the newspapers to re-

port damage to moving or parked motor vehicles by golfers

whose power exceeds their accuracy. Liability for such damage.

to automobiles (which are excluded to the same extent as air-

craft) would be a covered liability under the policy here in-

volved. The insuring agreement attempted to exclude only

that type of coverage that normally is extended by other forms

of insurance. For instance, with respect to automobiles, an

owner may obtain a policy covering physical damage to his

own car. This commonly is referred to as “‘collision insurance”

and carries a premium commensurate with the amount of risk

involved. Such an owner may, if he desires, for an additional

premium procure a rider protecting him when driving auto-

mobiles other than his own. The same situation doubtlessly

is true with respect to insurance on aircraft, and the exclusions

in the policy here involved were, at least in part, intended to

remove such types of coverage. Had this case involved a policy

extending collision coverage on nonowned planes “used by”

the insured, we believe that the lower court would have ruled,

and correctly so, that the insured was using the plane and that

his liability was a covered liability.

14

CONCLUSION

It is respectfully submitted that this petition for a writ of

certiorari should be granted.

E. L. McHANney, Jr.,

Joun M. Lorton, Jr.,

James M. McHaney,

OWENS, EHRMAN & McHANEY,

923 Pyramid Life Building,

Little Rock, Arkansas,

Attorneys for Petitioner.

15

APPENDIX

(Opinion)

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 14,992.

Great American Indemnity Com-

Appeal from the

pany of New York, pean, United States Dis-

Pal oon | tet Court for the.

. Western District o:

B. N. Saltzman,

(June 18, 1954.)

E. L. McHaney, Jr. (Grover T. Owens, John M. Lofton, Jr.

James McHaney and Owens, Ehrman & McHaney were

with him on the brief) , for Appellant.

Thomas B. Tinnon for Appellee.

Before GARDNER, Chief Judge, and WOODBROUGH and

THOMAS, Circuit Judges.

GARDNER, Chief Judge.

Appellee brought this action against appellant to recover

on a policy of liability insurance. The parties will be referred

to as they appeared in the trial court. Defendant issued to

plaintiff a personal liability policy of insurance on the 13th day

of June, 1950. The policy was delivered in the State of Ar-

kansas and hence is an Arkansas contract. It was in full force

and effect at all times pertinent to the issues here involved. It

contained provision that the insurance company would, subject

to exclusions, conditions and other terms of the policy, “***

on behalf of the Insured all sums which the insured shall be-

come obligated to pay by reason of the liability imposed upon

him by law * * * for damages because of injury to or destruction

of property, including the loss of use thereof.” The policy

contained exclusions which so far as here pertinent read as

follows:

“This policy does not apply:

si (a) * #4

“(b) to the ownership, maintenance or use, including

loading and unloading, of (1) motor vehicles * * *, (2)

watercraft * * *, or (3) aircraft; * * *

“(c) ** *

“(d) *s* *

“(e) * * * to injury to or destruction of property used by,

rented to or in the care, custody or control of the insured;”

At the time of the issuance of the policy the insured was a

practicing physician located at Mountain Home, Arkansas. He

was also the owner of a private airplane and a duly licensed

private pilot.

On November 28, 1951, plaintiff landed his aircraft at the

Flippin airport located at Flippin, Arkansas. Shortly thereafter

a Ryan Navion airplane owned by the Veterans of Foreign

Wars was landed at the Flippin airport by its pilot. While

this plane was standing at the airport, unoccupied and un-

guarded, the plaintiff who had in mind purchasing a new

plane, and being an airplane enthusiast, entered the cockpit of

the unoccupied Ryan Navion plane for the purpose of in-

17

specting its mechanism and its various gadgets. At the time

he entered the plane the engines were not operating and he

did not enter with the intention of activating any of the mach-

inery but simply for the purpose of inspecting it and familiariz-

ing himself with the various instruments and controls. In the

course of his inspection plaintiff engaged the aircraft starter

knowing at the time it was the starter control and with the

intention of engaging said control, but without the intention

of starting the engines. Plaintiff was under the impression

that the starter control could be engaged without actually

starting the engines. This thought was based upon the mis-

taken belief that mechanism connected with the starter was sim-

ilar to that in his own craft. To his surprise and amazement

and contrary to his eo the engines started and plain-

tiff because of his unfamiliarity with the various gadgets was

unable to set the brakes or turn off the engines or otherwise

stop the movement of the aircraft which rapidly accelerated

and crashed into a hangar after traveling a distance of some

ninety feet resulting in substantial damage to the aircraft.

Plaintiff's entrance to the aircraft was without authority, knowl-

edge or consent of the owner or operator of this aircraft, or so

far as appears from the record the knowledge of anyone but

himself.

In an action brought against plaintiff to recover damages

to this aircraft resulting from his acts judgment was recovered

against him in the amount of $3,569.58, including damages

and costs. When that action was initiated the insured gave

notice to the defendant herein of the commencement of the

action and tendered to it the defense of the action which the

defendant declined and plaintiff thereafter gave defendant

notice of the entry of judgment and demanded that it pay the

same. This, defendant also declined and thereafter plaintiff

paid the judgment and brought this action against the defend-

ant to recover the amount of said judgment and in addition

his attorney's fee, costs and penalties recoverable under the

Arkansas statutes.

The defendant answered, pleading as its defense that it

was not liable because of the exclusions contained in the policy

and that the damage for which plaintiff became liable and

for which judgment was rendered against him was to an air-

craft and that such liability was not one assumed by the de-

fendant because of the exclusions contained in the policy.

18

The action was tried to the court without a jury. The

facts were all stipulated and will be further developed in the

course of this opinion. The court entered findings of fact in

conformity with the stipulation and based thereon it concluded

as a matter of law that the defendant was liable and entered

judgment accordingly. From the judgment so entered defend-

ant prosecutes this appeal, contending as it did in the trial

court that:

I. The plaintiff's liability resulted from use of aircraft and

is not an insured liability, and

II. The property damaged was property used by, rented to

or in the care, custody or control of the insured.

As has been observed the facts were all stipulated and as

stated by the defendant in its brief the ultimate issue is whether

or not the policy covered plaintiff's liability for damage to an

airplane.

The general insuring clause of the policy obligates the de-

fendant “To pay on behalf of the insured all sums which the

insured shall become obligated to pay by reason of the liability

imposed upon him by law * * * for damages because of injury

to,or destruction of property * * *.” Manifestly, if this pro-

vision stood alone and unqualified it would cover the loss here

in question and hence the question to be determined is whether

the exclusionary clauses relied upon exempt defendant from

liability. The pertinent exclusions may be reduced to two:

1. Whether the aircraft was being used by plaintiff, and

2. Whether the aircraft was in plaintiff's care, custody or

control.

In considering the question of liability under any insur-

ance contract the contract must be considered as a whole. The

decisive question in this case is not what abstract definition

may be given the word “used” but rather what the term meant

as used in the exclusionary provisions of the policy. We are

clear that at the time of the occurrence which resulted in the

damage to the Ryan Navion plane plaintiff was not using the

aircraft nor was he attempting to use it. That was not his

purpose in entering the cockpit of this craft but he was simply

inspecting and somewhat carelessly handling certain gadgets

connected with the mechanism. Had the owner or pilot in

-——

19

control of the craft been present it is not conceivable that the

plaintiff would have requested of him the privilege of using

the plane, but manifestly, his request would have been for the

privilege of inspecting it. Defe: t relies strongly on the case

of Lee v. Aetna Casualty & Surety Co., 2 Cir., 178 F 2d 750,

but the case is readily distinguishable in its facts. There the

representative of the owner of the building, or of the business

carried on in the building, took a customer to the elevator so

that it might be used in the normal, ordinary or customary

manner for which it was intended, and invited the customer to

enter for the purpose of use, whereas in the instant case there

was no purpose on the part of the plaintiff to make the normal

or customary use of the plane as an instrument of transporta-

tion. It is conceded by defendant, as it must be, that the

term “use” is variously defined and if so, it was incumbent upon

defendant as the insurer to so word the exclusionary clause of

its contract that any conceivable contact with aircraft, such as

a physical inspection of it, would come within that term as used

in the contract. In Arkansas as in most jurisdictions it is held

that as insurance contracts are phrased by the insurer it is in-

cumbent upon the insurer to make them so clear that they con-

tain no ambiguity as to their meaning or they must be con-

strued most strongly against the insurer. Missouri State Life

Ins. Co. v. Martin, Ark., 69 S.W. 2d 1081; Kinard v. Mutual

Benefit Health & Accident Ass'n. of Omaha, Neb., D.C. Ark.,

108 F. Supp. 780.

The trial court gave very careful consideration to the ques-

tion as to whether the acts of the plaintiff in inspecting the air-

craft constituted ‘‘use” of the aircraft as the term is used in the

exclusionary clause of the policy and in the course of its opin-

ion the court said, inter alia:

“Various courts have discussed and defined the term ‘use’

and the following are examples of common definitions given

to the said term:

‘“In use” is defined to be “in employment;” “out of use”

to be “not in employment;” “to make use of, to put to use” to

be “to employ, to derive service from.” ’ Astor v. Merritt, Col-

lector, 111 U.S. 202, 213, 4 S.Ct. 413, 419, 28 L.Ed. 401.

“Webster’s New International Dictionary, 2d Ed., defines

the word “use” as follows: “Act of employing anything.” The

en ee ee nes

20

New Century Dictionary defines it as follows: ‘“To employ for

some purpose, put into service, or make use of * * *; apply

to one’s own purpose.” ’ Samuels v. American Automobile Ins.

Co., 10 Cir., 150 F. 2d 221, 223, 160 A.L.R. 1191.

‘In the instant case the terms in question are “use” and

“using”. Now a car would be used by a person, whether it

was operated personally or through the services of another. If

the insurer meant that liability should only attach when it was

being operated or driven by the owner or some one with his

consent, and it is claimed that the word “used” includes the

term “operated’’—then the insurer should have employed the

word carrying in its meaning the narrower limitation of liabil-

ity.

“The word “use” is defined as the “purpose served—a pur-

pose, object or end for useful or advantageous nature.” Oxford

English Dictionary.)

‘This implies that the person receives a benefit from the

employment of the factor involved. It is this benefit, purpose,

or end which defines the use. I use a chisel to chip out a piece

of wood. The removal of the wood is the use to which I put

the tool. * * * I employ an automobile for the purpose of

transportation. I use it for the purpose of going from here to

there. Brown v. Kennedy, 141 Ohio St. 457, 48 N.E. 2d 857,

49 N.E.2d 417, 418. See also, American Automobile Ins. Co.

v. Taylor, D.C. Ill., 52 F. Supp. 601.

‘Webster's Dictionary defines the word “use” as an act

of employing or state of being employed; to convert to one’s

service; toemploy.’ Treolo v. Iroquois Auto Ins. Underwriters,

348 Ill. 93, 180 N.E. 575, 576.

“Webster's New International Dictionary, Second Edition,

defines the verb ‘use’ as follows: “To convert to one’s service;

to avail oneself of; to employ; as to use a plow, a chair, a book

*** To put into operation; to cause to function; as, for his

purposes he used the same machinery and the same skill he had

previously used.’

“Of course if the term ‘use’ is construed to embrace all its

possible meanings and ramifications, practically every activity

of mankind would amount to a ‘use’ of something. However,

the term must be considered with regard to the setting in which

it is employed. In the instant case the policy excludes injury to

21

property used by the insured and does not apply to the use, in-

cluding loading and unloading, of aircraft. The Court is con-

vinced that the term ‘use’ as employed in the exclusionary

clauses was intended to mean and does mean the ordinary use

or employment of the property or aircraft. As the Court said

in Brown v. Kennedy, supra, ‘I employ an automobile for the

purpose of transportation. I use it for the purpose of going

from here to there.’ That is, the term ‘use’ in the exclusionary

clauses means the employment, in the case of aircraft, of the

property for the carrying of passengers or cargo, and is not broad

enough to cover the inquisitive inspection of or meddling with

an airplane by a person who is interested in purchasing a sim-

ilar aircraft. This view is fortified by the fact that the aircraft

exclusionary clause provides that the policy shail not apply to

the use, ‘including loading and unloading,’ of aircraft. It is

evident from this provision that the clause was intended to

exclude the ordinary and natural use of aircraft for transporta-

tion purposes, and to extend the exclusion to the loading and

unloading of the aircraft preparatory to and subsequent to the

actual flight.

“Suppose a person were considering the purchase of a hoe

for use in his garden, and, seeing a hoe in his neighbor's yard,

he walked over, picked it up, and began inspecting it. It is

doubtful if anyone would contend that, while he was inspecting

the hoe he was ‘using’ it because when one thinks of the use

of a hoe he thinks of the employment of the hoe for weeding a

garden, chopping cotton or one of the ordinary uses to which

a hoe is put and utilized. By the same token when one thinks

of the ‘use’ of an airplane he thinks of the employment of the

airplane for the transportation of passengers or cargo, i.e., its

ordinary uses, and would not consider the inspection of an air-

plane by a prospective purchaser of such an airplane a ‘use’ of

the said airplane.” 115 Fed. Supp. 944.

We conclude that the views of the trial court on this issue

are well founded and we adopt them as our own.

It remains to consider the contention that the acts of the

plaintiff in inspecting the aircraft placed him in the care, cus-

tody or control of the aircraft. Plaintiff was a trespasser and

entered on this venture of inspecting the aircraft wholly with-

out right or authority. The words “care, custody or control”

as they are used in the exclusionary provisions of the policy

22

connote a lawful, normal and customary situation. They do

not, we think, contemplate that a mere trespasser inspecting the

aircraft has either the care, custody or control of it. The author-

ities cited by and relied upon by defendant are clearly not in

point. In all of the cases cited by it there was a right to either

the care, custody or control, while in the instant case the plain-

tiff was a mere trespasser without any shadow of right to do

what he was doing. Thus in Hardware Mutual Casualty Co. v.

Mason-Moore, Tracy, Inc., 2 Cir., 194 F. 2d 173, and Crawford

v. Kansas City Stock Yards Co., Mo. App., 73 S.W. 2d 308, cited

by defendant as supporting his contentions, the party whose

acts were complained of had the right to possession at the time

he acted. In Cohen & Powell v. Great American Ind. Co.,

Conn., 16 A.2d 354, in the course of the opinion it is among

other things said:

“While the word ‘charge’ has a very broad and varied

meaning (McLoughlin v. Shaw, 95 Conn., 102, 107, 111 A.62),

a person or thing is not ‘in charge of an insured within the

meaning of the policy unless he has the right to exercise domin-

ion or control over it.” (Italics supplied)

It is argued that to permit plaintiff to recover under the

circumstances here existing would in effect permit him to profit

by his own wrong, but plaintiff is not profiting by his own wrong

but is simply being indemnified against the result of his own

wrongful acts and that, for the most part at least, is the very

purpose of liability insurance. To commit an act of negligence

is a wrongful act as against the person injured thereby but it

is perfectly legitimate that one protect himself against the re-

sult of his own negligence by a contract of insurance. The

acts of the plaintiff in this case were negligent acts and in that

sense were wrongful but they were not, so far as disclosed, wil-

ful, malicious, nor criminal, and no public policy is involved

in permitting one to insure against the results of such acts.

We conclude that the judgment appealed from is not vul-

nerable to the attacks made upon it by defendant and it is there-

fore affirmed.

23

(Judgment.)

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT.

No. 14992 — — September Term, 1953.

Friday, June 18, 1954.

Great American Indemnity Company of New York,

Appellant,

vs.

B. N. Saltzman.

Appeal from the United States District Court for the West-

ern District of Arkansas.

This cause came on to be heard on the record from the

United States District Court for the Western District of Ar-

kansas, and was argued by counsel.

On Consideration Whereof, It is now here Ordered and

Adjudged by this Court, that the judgment of the said District

Court appealed from in this cause, be, and the same is hereby

affirmed.

June 18, 1954.