Eastwood, Jayne and Francis, JJ. The opinion of the court was delivered by Eastwood, S.j.a.d.
The substantial question here is whether the plaintiff-appellant Lucille A. Smith, beneficiary under two policies of insurance issued to plaintiff's husband, John F. Smith, by the defendant-respondent Metropolitan Life Insurance Company (hereinafter referred to as the "insurance company"), is precluded from recovery of the sums specified therein by virtue of the exclusionary "Aviation Provisions" of the policies.
On motion of the insurance company at the end of the plaintiff's case, the Law Division directed the entry of a judgment on the first count of the complaint in favor of the plaintiff for $25.12, representing the reserve on policy No. 18679063-A, and of no cause of action on the second and third counts thereof. The plaintiff appealed from the ensuing judgment.
The facts are undisputed and may be concisely stated as follows: On July 16, 1951, the day of the insured's death, he rented a Piper Cub seaplane, equipped with two seats and dual controls, from Mellor-Howard Seaplane Base and Flying School, Ridgefield Park, New Jersey. The insured,
a licensed pilot, accompanied by his brother-in-law -- not a licensed pilot -- purposed flying the plane to Fire Island, New York, to do some swimming. When the plane left its base, it is conceded that the insured piloted it. Later the same day, the plane was found upside down in the ocean some 200 yards from Fire Island beach in the neighborhood of a boiler from a prior steamship or boat wreck. When extricated from the plane, the two men were strapped to the seats of the plane and upon examination were found to be dead. The medical cause of death was stated as acute asphyxia due to drowning. At the time the weather was foggy, the insured's plane had been seen flying over the beach heading out toward the ocean; shortly thereafter "an explosion similar to a shotgun explosion was heard" and the wreckage of the plane was seen in the ocean.
In the first count of the plaintiff's complaint, she sought recovery of the death benefit of $5,000 under life insurance policy No. 18679063-A; under the second count she sought recovery of double indemnity under the accidental means death benefit provision of the same policy; and under the third count she sought recovery under the terms of accident policy No. 2020313-AH.
The pertinent language of the exclusionary clause in the life insurance policy reads: "* * * the following are risks not assumed under this policy: death as the result of travel or flight in any species of aircraft if the insured has any duties relating to such aircraft or flight, * * *." If that clause applies, then the recovery thereon is limited to defendant's reserve on the policy which was stipulated to be $25.12.
Under the "Accidental Means Death Benefit" of the life insurance policy, the insured was entitled to an additional sum of $5,000 in the event of death as the result of accidental means, provided "that such death shall not have occurred * * * (d) as the result of travel or flight on any species of aircraft if the insured has any duties relating to such aircraft or flight, * * *.
The exclusionary clause in the accident policy provided:
This policy shall not cover, and no payment of any kind shall be made hereunder for, any of the results enumerated and defined in Benefit Provisions 1 to 4, ...