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SALTZMAN v. GREAT AMERICAN INDEMNITY CO.

October 29, 1953

SALTZMAN
v.
GREAT AMERICAN INDEMNITY CO. OF NEW YORK.



The opinion of the court was delivered by: John E. Miller, District Judge.

Statement

The case was submitted to the Court upon the pleadings, the stipulation of facts and exhibits thereto, and the briefs of the parties in support of their respective contentions, and the Court, having considered the same, now makes and files herein its findings of fact and conclusions of law, separately stated.

Findings of Fact

1.

The plaintiff is a citizen and resident of Mountain Home, Arkansas, in the Western District. The defendant is a corporation organized and existing under the laws of the State of New York and is engaged in and duly authorized to carry on the business of public liability insurance in the State of Arkansas. The matter in controversy, exclusive of interest and costs, exceeds the sum of $3,000.

2.

It was agreed by stipulation of parties filed on September 9, 1953, that:

    "1. The defendant, Great American Indemnity Company, issued
  its policy of insurance numbered LHC 98924 to the plaintiff, B.
  N. Saltzman, on the 13th day of June, 1950. Said policy was
  designated a `comprehensive personal liability policy', and a
  photostatic copy of said policy of insurance is attached hereto
  and made a part hereof, it being agreed that said photostatic
  copy is a true and correct copy of the original and contains
  all of the provisions pertinent to the issues involved in this
  cause.
    "2. On November 28, 1951, a 1949 Ryan Navion airplane owned
  by the Veterans of Foreign Wars of the United States and being
  piloted by Bruce Campbell, a salaried employee of the Veterans
  of Foreign Wars, was landed at the Flippin, Arkansas, airport
  while engaged on the official business of the owner. The
  Commander-in-Chief of the Veterans of Foreign Wars, Frank C.
  Hilton, was the only passenger in said airplane.
    "3. Shortly after the landing of said plane, the
  aforementioned Campbell and Hilton left the airport after the
  pilot had been instructed by Mrs. Genevia Crane, wife of the
  operator of said airport, to leave the plane unlocked and with
  brakes off and disengaged at a place where the plane had come to
  rest. These instructions by Mrs. Crane were given for the
  purpose of facilitating the storage of said airplane in the
  hangar. The pilot, Bruce Campbell, complied with the
  instructions of Mrs. Crane and left said plane with its engines
  stopped or dead, with all switches, throttles, and controls in
  their normal position.
    "4. The plaintiff, B. N. Saltzman, is a regularly licensed
  and practicing physician in the trade area of Mountain Home,
  Baxter County, Arkansas. He is also the operator of his own
  aircraft and has been duly licensed as a private pilot. The
  plaintiff had landed his own aircraft at the Flippin airport
  some ten or fifteen minutes prior to the landing of the
  airplane of the said Veterans of Foreign Wars and was informed
  that the national commander of the Veterans of Foreign Wars
  would land at that airport and remained to meet the national
  commander and to observe the Ryan Navion aircraft in which the
  commander was a passenger.
    "5. After the national commander of Veterans of Foreign Wars,
  his pilot, and the receiption committee departed from the
  airport, the plaintiff, B. N. Saltzman, walked out to the Ryan
  Navion aircraft and, being an aviation enthusiast and having
  considered the purchase of such an aircraft, he availed himself
  of this opportunity to inspect and examine said aircraft. The
  plaintiff walked around the aircraft two or three times and
  then stepped up onto the wing at the passenger walkway to
  better observe the interior of the airplane cabin. The cabin
  hatch being unlocked and open, the plaintiff stepped into the
  cabin without the permission or knowledge of Hilton, Campbell,
  or Mrs. Crane, placed himself in the pilot seat, and began an
  examination of the various instruments, switches, button
  controls, and equipment upon said airplane. After four or five
  minutes of such examination, and after having actually operated
  various controls, switches, and control buttons, the plaintiff
  engaged the aircraft starter. The plaintiff engaged the starter
  control

  knowing at the time that it was the starter control and with
  the intention of engaging said control, but without the
  intent to start the engines. He engaged said starter
  control under the impression that it could be engaged
  without actually energizing or starting the engines. Due
  to the position of the throttle, electric system, master
  switch, ignition switch, electric fuel pump, and primer
  control, the aircraft engines energized or started when
  the starter control was engaged by the plaintiff, and the
  aircraft began to move. The plaintiff, as a result of his
  pilot's training, immediately and automatically sought to
  set the airplane wheel brakes by attempting to depress
  the brake foot controls, which on the airplane to which
  plaintiff was accustomed are an integral part of the foot
  actuated rudder control. The Ryan Navion airplane was not
  equipped with the brake actuating mechanism with which
  the plaintiff was familiar. When the plaintiff's efforts
  to engage the brakes in the aforesaid manner failed to
  stop the aircraft, the plaintiff became excited and began
  looking for the brake actuating controls. Due to the
  position in which the throttle had been left by the pilot
  of the aircraft, the aircraft accelerated in forward
  motion rapidly when the engines were started. During the
  short period of time in which the plaintiff was searching
  for a brake control, the aircraft traveled approximately
  90 to 100 feet and crashed into the side of the Flippin
  airport hangar, shearing off one wing and causing the
  aircraft to spin into the hangar, thereby damaging the
  aircraft to the extent hereinafter set out. The plaintiff
  later learned that this particular type of aircraft was
  equipped with a hand-operated brake control situated on
  the instrument panel directly in front of the pilot's seat.
    "6. The cost of repairs to the Ryan Navion airplane owned by
  the Veterans of Foreign Wars as a result of the collision
  hereinbefore set out was $3,532.08, and an action was instituted
  against the plaintiff in the United States District Court
  for the Western District of Arkansas, Harrison Division,
  by the Insurance Company of North America and Veterans of
  Foreign Wars of the United States to recover the damages
  they sustained as a result of said collision. A judgment
  was rendered against the plaintiff, B. N. Saltzman, in
  said action in the sum of $3,569.58, which included the
  costs of said action, and said justment was paid by the
  plaintiff in full on or about the 11th day of May, 1953,
  and has been satisfied of record.
    "7. The policy of insurance issued to the plaintiff by the
  defendant on the 15th day of June, 1950, was in full force and
  effect at the time of the collision wherein the Ryan Navion
  airplane was damaged, as hereinbefore set forth. The plaintiff
  gave notice to the defendant company within time and in accord
  with the provisions of said policy of insurance. The plaintiff
  gave to the company additional notice of the institution of the
  action instituted against him by the Insurance Company of North
  America and the Veterans of Foreign Wars and tendered to it the
  defense of said cause, and, further, gave notice to the company
  of the rendition of the judgment and demanded payment of said
  judgment of the company prior to its satisfaction by the
  plaintiff.
    "8. The company has denied that it was obligated to pay the
  damages paid by the plaintiff under the circumstances
  hereinbefore set out, contending that its policy of
  insurance did not cover or indemnify the plaintiff for
  any loss that he

  might sustain under the facts agreed upon in this stipulation.
    "9. The plaintiff has actually paid to his attorney, Thomas
  B. Tinnon, the sum of $1,256.00 for his services rendered in the
  case of Insurance Company of North America v. Saltzman, infra.
    "10. This stipulation contains all the facts pertinent to the
  issues involved in this cause, and no further evidence shall be
  offered in the disposition of this litigation."

3.

The policy issued to the plaintiff provides that the defendant agrees with the insured, subject to exclusions, conditions and other terms of the policy, "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, including the loss of use thereof."

Under the title "Exclusions" the policy provides that it does not apply "to the ownership, maintenance or use, including loading and unloading, of * * aircraft," or to "injury to or destruction of property used by, rented to or in the care, custody or control of the insured."

4.

Part II of the policy provides that "As respects such insurance as is afforded by the other terms of this policy under Coverage A the company shall (a) defend in his name and behalf any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent * * *."

As heretofore stated in finding of fact No. 2, the defendant denied that the occurrence was covered by the policy and refused to defend the action brought against the plaintiff by the Insurance Company of North America and Veterans of Foreign Wars of the United States.

5.

Considering the issues, amount of work involved, experience of plaintiff's attorney, result of the litigation, and other factors present in the disposition of this case, the Court is of the opinion ...


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