Adair v. Valley Flying Service
| Decision Date | 14 November 1952 |
| Citation | 250 P.2d 104,196 Or. 479 |
| Parties | ADAIR v. VALLEY FLYING SERVICE. |
| Court | Oregon Supreme Court |
Howard K. Beebe, of Portland, argued the cause for appellant. With him on the brief were Maguire, Shields, Morrison & Bailey, of Portland.
C. S. Emmons, of Albany, argued the cause for respondent. On the brief were Willis, Kyle & Emmons, of Albany.
Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE and TOOZE, JJ.
This is an action for damages for the alleged wrongful death of Darius C. Adair, plaintiff's intestate, caused by an airplane accident. The case was tried to a jury, resulting in a verdict and judgment in favor of plaintiff in the sum of $10,000; defendant appeals.
Defendant Valley Flying Service is an Oregon corporation, engaged in an airport and airplane rental business at Sweet Home airport, near the city of Sweet Home, in Linn County, Oregon.
On September 18, 1948, one Frederick Richard Redding rented from defendant a plane for the purpose of flying for pleasure in the locality of the airport. Redding had rented a plane from defendant upon prior occasions and was an experienced pilot. When he rented the plane, Redding was accompanied by his friend, plaintiff's intestate, who became a passenger therein. Redding piloted the plane up a canyon at a height of approximately 30 feet above the trees growing therein and eventually collided with some of the trees, completely wrecking the plane and causing the deaths of both himself and plaintiff's intestate.
This action is brought by plaintiff Veta Adair, as administratrix of the estate of Darius C. Adair, deceased, for the benefit of herself, as widow, and for the benefit of two surviving minor children and dependents, of decedent, pursuant to the provisions of § 8-903, O.C.L.A.
On September 13, 1950, plaintiff filed in the circuit court for Linn county her amended complaint which, omitting formal parts, alleges as follows:
'I.
'That plaintiff is now the duly appointed, qualified and acting administratrix of the estate of Darius C. Adair, deceased.
'II.
'That the defendant is a corporation organized and existing under and by virtue of the laws of the State of Oregon, and that said defendant at all times herein mentioned was operating an airport and airplane rental business at the Sweet Home airport, Linn County, Oregon.
'III.
'That on or about the 18th day of September 1948, Darius C. Adair in company with one Frederick Richard Redding approached Frank R. Reed, manager of the Valley Flying Service, and the said Redding requested that the defendant rent the said Redding a plane to fly around the locality and advised the said manager that he intended to take Darius C. Adair as a passenger.
'That the said Frederick Richard Redding was visibly intoxicated and considerably under the influence of intoxicating liquor at and prior to the time the defendant rented him the said airplane and allowed him to pilot the same, and that Darius C. Adair was also under the influence of liquor at said time and place when he became a passenger in said plane, all of which the defendant knew, or by the exercise of due diligence could or should have known.
'IV.
'That the said Darius C. Adair and the said Frederick Richard Redding were allowed to enter an airplane and the said Frederick Richard Redding was allowed to fly the same by the defendant while both the said Frederick Richard Redding and the said decedent Darius C. Adair were noticeably intoxicated.
'That the said Frederick Richard Redding took the plane off from the ground, flew up a canyon about 30 feet above the trees and made a steep turn to the left and flew into the trees causing the death of the said Frederick Richard Redding and Darius C. Adair.
'That the weather was good, there were no clouds and no unusual wind at the time and place the accident occurred, and plaintiff alleges that the airplane was flown into the trees by the said Frederick Richard Redding because he was intoxicated.
'V.
'That the defendant negligently knowingly permitted and allowed Frederick Richard Redding to operate an airplane and to take Darius C. Adair as a passenger at a time when the said Frederick Richard Redding was under the influence of intoxicating liquor and that this negligent act of the defendant in knowingly permitting the said Frederick Richard Reddng to so operate said airplane while under the influence of intoxicating liquor was the proximate cause of the death of Darius C. Adair.
'VI.
'That the said Darius C. Adair left surviving him as his widow the plaintiff, Veta Adair, and two surviving children, Marvin Adair, age 9 years, and James Adair, age 1 1/2 years.
'VII.
'That the decedent at the time of his death was in good heath, of the age of 31 years and was earning in excess of $250.00 per month, and that had said decedent lived he would have contributed to the care and support of his said widow and said children a sum in excess of $10,000.00.'
Defendant's answer consisted simply of a general denial. The defense of contributory negligence was not affirmatively pleaded.
A right of action for the wrongful death of a person is statutory. In this state it is governed by the provisions of § 8-903, O.C.L.A. which partially provides as follows:
'When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former for the benefit of the widow or widower and dependents and in case there is no widow or widower, or surviving dependents, then for the benefit of the estate of the deceased may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission.' (Italics ours.)
Under the express provisions of this statute the test of the right of a personal representative of a deceased person to maintain an action for wrongful death is whether the deceased person, had he lived, could have maintained an action against the alleged wrongdoer for an injury caused by the same act or omission.
It is a well-established general rule in this state that contributory negligence is an affirmative defense that must be specially pleaded or it is waived. However, there is a well-recognized exception to that rule. Plaintiff's own evidence clearly discloses contributory negligence on his part, as a matter of law, or if the fact of such negligence is disclosed or put in issue by the allegations of the complaint, no recovery can be had by plaintiff, even though...
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