Alamo Airways, Inc. v. Benum

• Decision Date: 20 September 1962
• Docket Number: Nos. 4498,4510,s. 4498
• Citation: 78 Nev. 384,374 P.2d 684
• Parties: ALAMO AIRWAYS, INC., Appellant, v. Roland I. BENUM, Respondent. Roland I. BENUM, Appellant, v. ALAMO AIRWAYS, INC., Respondent.
• Court: Nevada Supreme Court

Page 684

374 P.2d 684

78 Nev. 384

ALAMO AIRWAYS, INC., Appellant, v. Roland I. BENUM, Respondent.

Roland I. BENUM, Appellant, v. ALAMO AIRWAYS, INC., Respondent.

Nos. 4498, 4510.

Supreme Court of Nevada.

Sept. 20, 1962.

Morse & Graves and Lee R. Rose, Las Vegas, for appellant Alamo Airways, Inc.

Stewart, Horton & McCune, Reno, for respondent Benum.

BADT, Chief Justice.

The main problem presented by the cross-appeals in this case is whether, in a bailment for hire, the defendant bailee had sustained the burden of proving that damage to the bailed airplane was due to causes consistent with due care on his part. Other questions relating to the trial court's admission and exclusion of evidence are likewise determined. The parties are referred to in their abbreviated names.

Benum, plaintiff below, was the owner of a light airplane, a 1947, Stinson, which he delivered to defendant Alamo, a flying service operator, for the purpose of storage. The parties agree that the storage arrangement constituted a bailment for hire, the bailor paying an agreed sum as monthly rental, in consideration of which the bailee was to store the airplane in the bailee's open 'tie-down area' on McCarran Field near Las Vegas. Benum taxied the plane to a convenient point, whereupon Alamo's employees removed it to the tie-down area and performed the tie-down procedures. The purpose of mooring or tying down aircraft is to prevent their being blown about and damaged by wind. The tie-down area is equipped with several parallel steel cables stretched along the ground and anchored at each end and at 30-foot intervals to underground 'deadmen.' The planes are parked abreast. A chain is attached to the cable by means of an S-shaped hook and extended upward to where it is attached by a similar S-shaped hook to the mooring fittings or 'tie-down rings' on the underside of the aircraft's wing or strut. The length of the chain is adjusted to the demanded length and for tautness by attaching the S-hook to the mooring ring on the plane and fastening the chain to the cable. The other wing and the tail are similarly fastened down.

The moring of July 28, 1958, was calm. Hourly readings by the United States Weather Bureau at the airport, a short distance from where the planes were moored, registered from calm to ten knots an hour. At noon it was again blowing five knots and characterized as light. A thunderstorm, typical to a July day, came up around noon or one o'clock 'as is normal in such thunderstorm conditions.' Such storms are common in that area at that time of year. The United States Weather Bureau attendant characterized it as 'a common thunderstorm.' The weather bureau reported early that morning that there would be winds all that day. On the preceding day, July 27, it reported that there would be high winds all day on the 28th. At 12:45 p. m. the wind registered 41 knots and at 1:25 p. m., 40 knots. Plaintiff's airplane was torn loose from its moorings, lifted into the air by the wind, and turned over upon its back, resulting in severe damage. Two other planes owned by Alamo were likewise torn loose but remained upright. It was demonstrated both by testimony of witnesses and photographs of the mooring chains that the S-hooks that were engaged in the mooring rings on both wings had been stretched out almost straight. The mooring rings attached to the wings or struts, while elongated, had remained fast. Nothing in the evidence indicates that Benum's plane would have been torn loose if the S-hooks had remained intact. A typical chain was introduced in evidence. It indicates that the S-hook appears to be of a different material than the links of the chain. No evidence was offered concerning the nature or strength of the material in the S-hook.

1. A bailee for hire is not an insurer of the bailed property and is not liable to the bailor for its loss or destruction without the bailee's fault. Bramlette v. Titus, 70 Nev. 305, 267 P.2d 620. However, where the property is delivered in good condition to the bailee and returned by him in a damaged state, a presumption arises that the damage is due to the bailee's fault, and unless he sustains the burden of proving that such damage was due to other causes consistent with due care on his part, the bailor becomes entitled to judgment as a matter of law. Gaudin Motor Co., Inc. v. Wodarek, 76 Nev. 415, 356 P.2d 638; Manhattan Insurance Co. v. Grand Central Garage, 54 Nev. 147, 152, 9 P.2d 682; Donlan v. Clark, 23 Nev. 203, 205-206, 45 P. 1; Anno., 'Liability of bailee of airplane for damage thereto,' 17 A.L.R.2d 913.

Alamo contends, and Benum concedes, that the bailee, in the absence of special contract, is held to the exercise of ordinary care in relation to the subject matter thereof. This has been applied to the bailment of airplanes in Meyer v. Moore (Okl.), 329 P.2d 676; Shephard v. Graham Bell Aviation Service, 56 N.M. 293, 243 P.2d 603; Odle v. Dunbar, 129 Cal.App.2d 466, 277 P.2d 418; Zanker v. Cedar Flying Service, 214 Minn. 242, 7 N.W.2d 775; Southern Air Transport v. Gulf Airways, 215 La. 366, 40 So.2d 787; City of Jackson v. Brummett, 224 Miss. 501, 80 So.2d 827; and Central Aviation Co. v. Perkinson, 269 Ala. 197, 112 So.2d 326. All these cases involved the sufficiency of the respective tie-down systems of the defendant and all involved cases in which the plane was torn from its moorings by high winds, which it was the duty of the bailee to anticipate. In all cases judgment in favor of the bailor was sustained. Alamo seeks to distinguish these cases because in each of them there was a clear breach of the duty owed by the bailee which it claims is lacking in the instant case; that in City of Jackson v. Brummett, supra, and in Odle v. Dunbar, supra, the tie-down ropes used were rotten; that in Central Aviation Co. v. Perkinson, supra, the tie-downs were ropes, not chains; that in Southern Air Transport v. Gulf Airways, supra, no tie-downs were used, the parking brakes were not locked, nor were the wheels blocked; that in Meyer v. Moore, supra, the tie-down chains had been permitted to become rusted, corroded, worn, weakened and dilapidated. It is true that in those cases the precise degree and the precise nature of the bailee's negligence showed some variation from Alamo's negligence in the present case. Yet in principle there is no distinction in the failure of a rope (as distinguished from a chain), a weak rope (as distinguished from a sufficiently strong rope or a chain), or a rusted or corroded chain (as distinguished from a chain equipped with an S-hook that was not strong enough to withstand the strain). In each case, as in the present case, the bailee's negligence consisted in using tie-downs inadequate to withstand the pressure of anticipated winds.

While Alamo points to some testimony to the effect that the high wind was a 'twister' and that it was an unusually strong wind, there was much substantial evidence to the contrary. The conflict on this point was resolved in Benum's favor and it is not our province to interfere. Where it is contended that the damage resulted from an act of God, such act, to avail the defendant, must be such a providential occurrence or extraordinary manifestation of the forces of nature that it could not reasonably have been foreseen, and the effect thereof avoided by the exercisd of reasonable prudence, diligence and care, or by the use of those means which the situation renders reasonable to employ. Southern Air Transport v. Gulf Airways, 215 La. 366, 40 So.2d 787. In that case, as here, it was said that the strong winds could be and were foreseen. To like effect are City of Jackson v. Brummett, 224 Miss. 501, 80 So.2d 827, and other cases. Alamo's reliance on its showing--that its manager and his crew had spent many hours on the day in question in inspecting all the planes in the tie-down area to be assured that they were all properly tied down against the wind--cannot prevail against the court's finding, supported by substantial evidence, that the tie-downs were inadequate to withstand a foreseeable wind.

2. Alamo contends however that the trial court went far beyond requiring Alamo to exercise reasonable and ordinary care under the circumstances but required it to exercise 'the highest degree of care' towards the bailed airplane. Appellant's reference is to the language used by the trial court when at the conclusion of oral arguments following the trial, the court said: 'The defendant being in the business of taking care of airplanes is held to know their sensitivity; that in this area of gusty winds every conceivable precaution must be taken to what would otherwise be an extraordinary degree or in the business of taking care of planes in an ordinary degree. Now, then, they must anticipate or foresee what could happen in an act of God case and guard against it so long as airplanes are concerned, whether it be by bigger and stronger chains or double or triple chains. These, this Court holds, that the defendant must do. Here the...