On certification to the Appellate Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Oliphant and Ackerson. For affirmance -- Justices Heher and Burling. The opinion of the court was delivered by Vanderbilt, C.J.
[5 NJ Page 22] This is an appeal from a judgment of the Law Division of the Superior Court entered on a jury
verdict in favor of the plaintiff in the amount of $4,470. The case was certified by this Court on its own motion while it was pending in the Appellate Division of the Superior Court.
The facts in the case are not in dispute. The plaintiff took off in his Stinson Voyager aircraft from the Lincoln Park Airport, Morris County, with three friends as passengers to view a forest fire in the nearby Ramapo Mountains. The plane started to climb and got to an altitude of about 400 feet, when the motor, though still running, failed to develop sufficient power for flight. Seeing the terrain ahead was unfavorable for a landing, the plaintiff put his plane into a dive to get up speed so he could glide back to the airport. He was unable to make the airport, however, and the plane landed in a peat bog, first striking a mound of dirt, breaking off a wheel, and then skidding along on its belly for 30 or 35 feet. The propeller chewed itself off on the ground and the plane came to a stop with the tail about ten feet off the ground and the nose and underneath side of the engine cowling just about resting on the ground. The peat bog where the plane came to rest was smouldering, and within a matter of a minute or two, or perhaps even of seconds, gasoline dripping from the carburetor overflow was ignited by the fire on the ground and the plane was quickly enveloped in flames. Firemen responding to a call put in by someone at the airport were unable to extinguish the blaze until the plane had been totally destroyed. Three of the occupants of the plane were slightly injured, the fourth suffered a serious back injury, but all got out of the plane before it caught fire.
The plaintiff instituted this action on a policy of insurance, then in effect, whereby the defendant insured the plaintiff in respect to his aircraft against "all risks of physical loss or damage to the aircraft, except while in flight, subject to the declarations, general conditions and other terms of the policy included herein or endorsed hereon, excluding fire or explosion resulting from crash or collision while in flight." "Flight" was defined in the policy as being "the period from the start of actual take-off run, while in the air and until completion of the landing run."
At the conclusion of the plaintiff's case, the defendant made a motion for judgment in its favor, which was denied by the court. The defendant then offered no testimony, but rested its case and renewed its motion for judgment, which was likewise denied. The court thereupon submitted the case to the jury, charging in part that "in order for the plaintiff to recover he must prove by a preponderance of evidence that the loss or damage to his plane was not caused by fire or explosion resulting from crash or collision while in flight. He must prove that the proximate cause of the damage was from fire after the completion of the landing run, excluding fire or explosion resulting from crash or collision." The jury found for the plaintiff and the judgment here appealed from was entered accordingly.
Two questions are presented on the appeal. The defendant first contends that it was error to have submitted the case to the jury as the facts were not in dispute and the construction of the policy was a matter of law to be determined by the court, and second, that as a matter of law the fire that destroyed the plane resulted from a crash or collision while in flight, and that, therefore, the loss was excluded from the coverage of the policy.
The first point need not be decided here, since the plaintiff in his brief in effect admits that the case should not have gone to the jury. He contends, however, that the defendant was not prejudiced by the error, because the court itself should have entered judgment for the plaintiff.
The case, therefore, revolves around the question of whether or not the loss is compensable under the terms of the policy. Whatever may be the rules of construction when a policy of insurance is ambiguous, it has long been the law in this State that when the contract is clear the court is bound to enforce the contract as it finds it. "'The law will not make a better contract for parties than they themselves have seen fit to enter into, or alter it for the benefit of one party and to the detriment of the other. The judicial function of a court of law is to enforce the contract as it is written.'" Kupfersmith v. Delaware Insurance Company, 84 N.J.L. 271, 275
(E. & A. 1912); Caruso v. John Hancock Mutual Life Ins. Co., 136 N.J.L. 597, 598 (E. & A. 1947). Applying this test to the instant case, was the fire in question within the terms of the policy? Clearly it was not by ...