
    Albert Newton Ridgely, Respondent, v. Ætna Life Insurance Company, Appellant.
    First Department,
    February 13, 1914.
    Insurance action to enforce policy of accident insurance — provisions of policy and of classification manual construed — injury while experimenting with biplane — false statement in application.
    In an action by a person who was injured while experimenting with a Curtiss biplane, to recover under a policy of accident insurance, it appeared that the plaintiff in his application stated that his business was that of “ financial writer and reporter.” The policy provided that “if the insured is injured after having changed his occupation to one rated by this company in a more hazardous class than the premium paid by this policy covers, or while temporarily or otherwise engaged in doing any act or thing pertaining to any occupation so rated (except ordinary duties about his residence or while engaged in recreation), the company’s liability shall be only such proportion of the principal sum or other indemnity as the premium paid by him will purchase at the rate and within the limit fixed by this company for such more hazardous occupation.” The policy did not indicate that there were any risks against which the company did not insure, but the Classification Manual filed with the Superintendent of Insurance prior to plaintiff’s application, pursuant to section 107 of the Insurance Law, stated that an airship operator, builder, owner, experimenter or inventor was not insurable, and that the company would not be liable for injuries to persons so engaged to an amount in excess of $500. It was also stated that “ each $1,000 of insurance carries with it $5 weekly indemnity, unless otherwise specified.”
    
      Held, that the plaintiff was not engaged in “recreation” within the meaning of the policy at the time he was injured;
    That his right to recover is limited to $500, which entitles him to one-half of the weekly indemnity stated, or $2.50 per week.
    
      It seems, that under the evidence the plaintiff applied for the insurance in anticipation of the accident from his biplane, and, therefore, a statement in his application that he did not contemplate any “hazardous undertaking ” was false.
    Hotchkiss, J., dissented.
    Appeal by the defendant, .¿Etna Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of June, 1913, upon the decision of the court after a trial before the court at the New York Trial Term, a jury having been waived.
    
      John Vernou Bouvier, Jr. [W. Montague Geer, Jr., with him on the brief], for the appellant.
    
      David Burr Luckey [John J. Schwartz with him on the brief], for the respondent.
   Laughlin, J.;

This is an action to enforce the liability of the defendant on a policy of accident insurance which it issued to plaintiff on the 12th day of June, 1911. The issues were, by consent, tried before the court without a jury.

At the Mineóla aviation field on the twenty-first day of July following the issuance of the policy, the plaintiff made an ascension alone in a Curtiss type biplane, which he had constructed with a view to renting on shares to aviators desiring to enter aviation prize contests. He ascended twenty or thirty feet and then, on attempting to keep the machine on that level, he found that it was not properly balanced. It con-tinned to ascend, and he was carried to a height of sixty or seventy feet. By leaning far forward he changed the course to down vard, and then before he could right it, the forward wheels struck the ground, and it toppled over and he sustained injuries from which it was stipulated that tie suffered a total disability for six weeks and three days, and a partial disability for eighteen weeks thereafter.

' By the terms of the policy, for the risk contemplated, plaintiff would be entitled to an indemnity of $30,000 in case of death and at the rate of $150 per week for total disability, and one-half that amount for partial disability. He has recovered for disability on that basis.

The principal contention made in behalf of the appellant is that plaintiff was guilty of a breach of warranty in his application on which the policy was issued, and, therefore, could not recover. The plaintiff has long taken an active interest in athletics and personally participated in feats of diving, skating and bicycle riding. He described his occupation during the last fifteen years before the trial as that of a financial writer and reporter. About one year prior to taking out the policy he became interested in aeroplanes and had been experimenting with models during all or the last half of that period. He conceived the idea of building one, and in January, 1911, he, with the assistance of others whom he employed, commenced constructing it. It was practically completed and ready for testing in May of that year. He was testing and experimenting with it at the time he met with the accident. He had experimented with the machine on the ground a few times before, but had not attempted to rise from the ground with it, but on one occasion a few days before the accident, he ran it only a short distance just skimming the ground. According to his testimony he did not expect personally to test the machine when he went to the aviation field on the day of the accident, for he had an appointment with one Russell, who was to try it, and Russell having failed to appear and everything being favorable, he determined to test it near the ground himself. He had visited the field and observed flights of aviators that spring three or four times a week.

At or shortly before the time plaintiff applied for the policy in question he procured from the Standard Company an accident policy for $15,000, and prior thereto he had had no policy of accident insurance “ that amounted to anything,” as he put it. The application was on a printed blank furnished by the company for twenty statements of fact which the applicant warranted to be true. The 7th statement with the blank filled in became a representation that he understood that risks are classified according to occupations,, and that his occupation “Financial Writer and Eeporter,” as therein described, was “Preferred.” The 15th statement as printed was as follows: “I have not in contemplation any special journey nor any hazardous undertaking, not required by my occupation as above described, except as herein stated,” and in the blank following there was filled in “ No exceptions.”

It is urged on the part of the appellant that the statement that plaintiff did not contemplate any hazardous undertaking was false.

It must be conceded that the evidence, the substance of which has been stated, gives rise to a strong suspicion that plaintiff applied for the insurance in anticipation of an accident from his biplane, which was then ready for ascensions, but that depends on the state of his mind at the time. In the view we take of another point and of a suggestion made by counsel for appellant that a new trial is not desired, we do not deem it necessary to decide whether the finding that he did not intend personally to test the machine or to make an ascension is so clearly against the weight of the evidence as to justify a reversal and a finding to the contrary or a new trial on that ground. We are of opinion that in no event- can plaintiff recover more than thirty-eight dollars and fifty-seven cents, which would not entitle him to costs, and, therefore, we think that justice will be fairly approximated, if not fully attained, by reducing the recovery to that amount.

There is some conflict between the provisions of the policy itself and the company’s “ Classification Manual for Accident Insurance ” filed, prior to plaintiff’s application, with the Superintendent of Insurance of this State pursuant to the provisions of section 107 of the Insurance Law (Consol. Laws, chap. 28; Laws of 1909, chap. 33), which were added thereto by chapter 636 of the Laws of 1910. The policy proper indicates that different risks are classified differently by the defendant, but it does not show or indicate that there are any risks against which the company does not insure at all, and it does not set forth the classification of risks; but said Classification Manual shows several risks there stated to be non-insurable. That is shown in such a manner, however, as to indicate that the company recognizes that it is liable to the extent of $500 in cases of accidents against which it prescribes no rates and for which it issues no policy expressly. Paragraph “ D ” of “ Part XIII ” of the “General Provisions” of the policy is as follows: “If the Insured is injured after having changed his occupation to one rated by this Company in a more hazardous class than the premium paid for this policy covers, or while temporarily or otherwise engaged in doing any act or thing pertaining to any occupation so rated (except ordinary duties about his residence or while engaged in recreation) the Company’s liability shall be only such proportion of the principal sum or other indemnity as the premium paid by him will purchase at the rate and within the limit fixed by this Company for such more hazardous occupation. Any unearned premium in excess of the amount required for such limit will be refunded upon demand.” In his application plaintiff stated his duties as ‘i Financial Writer and Reporter ” to be “ Writing a daily market letter, forecasting financial probabilities.”

Plaintiff attempts to sustain the recovery on the theory that he was engaged in recreation, within the exception contained in the paragraph quoted. There is no merit in that point, for plaintiff admitted that his purpose in ascending was to test and try out the machine. Defendant’s said classification is not printed in the record, but extracts therefrom are set forth as follows: Under the heading “Instructions,” it contains the following: “ This Classification Manual covers only the classification, limit of risk, premiums, and designations of occupation to be used in writing Accident business. * * * The maximum limit of risk is given at $10,000, but-especially desirable, ‘select’ and ‘preferred’ risks may be written for $15,000 or for larger amounts upon special approval by the Company. Applications, with full information, must be submitted to the Company to secure such approval.” Under the heading “ Classification of Risks ” it contains the following: “ Each $1,000 of insurance carries with it $5.00 weekly indemnity, unless otherwise specified.” It also contains on page 6 the following:

“ Occupation. Class. Limit of Risk.
and on page 7 under the same headings: “ Aeronaut, navigator or passenger (not insurable). ”......... H. X. Ex. Peril. $500 ”
“Air Ship Operator, Builder, Owner, Experimenter, Inventor, or Passenger, making ascensions (not insurable)...... H. X. Ex. Peril. $500 ” and on page 10 under the same headings:
“Aviator (not insurable)..... H. X. Ex. Peril. $500 ’

Assuming that plaintiff had knowledge of the fact that the Classification Manual was filed, and of its contents, as found, still he would have been warranted in deeming that the company would be liable in any event for $500 if he met with an injury while temporarily ascending in, or experimenting with, his biplane. According to the strict terms of the policy, the plaintiff having been injured while engaged temporarily in performing acts relating to a more hazardous occupation, the company would be liable for the proportion of the insurance stated in the policy which the premium he paid would purchase at the rate fixed by the company for the more hazardous occupation; but, since by consulting the Classification Manual of which he had constructive notice, at least (see Ins. Law, § 107), it appears that it does not insure such risks at all, the plaintiff is necessarily limited by the $500 liability provision. Since each $1,000 of insurance carries with it a weekly indemnity of $5 unless otherwise specified, it is reasonable to conclude that each $500 of insurance carries one-half that amount. For the period of total disability, therefore, plaintiff was entitled to $2.50 per week, and since he was to receive only one-half as much for partial as for total disability, the company’s liability to him for partial disability is $1.25 per week, aggregating $38.57.

These views require the reversal of finding numbered 22, and that a finding be inserted in its place to the effect that plaintiff was not engaged in recreation at the time he was injured; and additional findings should be made setting forth the terms of the policy and Classification Manual on which these views are taken, in so far as not contained in the decision; and conclusions of law numbered 4, 6 and 7 should be reversed, and a conclusion of law inserted in place thereof to the effect that plaintiff is entitled to recover thirty-eight dollars and fifty-seven cents and interest from February 19, 1912; and that the judgment should be reversed, with costs to appellant, and judgment directed for plaintiff on the decision as modified.

Ingraham, P. J., McLaughlin and Dowling, JJ., concurred.

Hotchkiss, J.:

I dissent and vote for affirmance.

Judgment reversed, with costs to appellant, and judgment directed for plaintiff on the decision as modified. Order to be settled on notice. 
      
       Since repealed and new § 107 added by Laws of 1913, chap. 155.— [Rep.
     