Ayer v. Boyle

• Decision Date: 11 March 1974
• Citation: 37 Cal.App.3d 822,112 Cal.Rptr. 636
• Court: California Court of Appeals Court of Appeals
• Parties: Elva G. AYER, Plaintiff and Appellant, v. Philip K. BOYLE and Albert G. Buscaglia, Defendants and Respondents. Civ. 30980.

Page 636

112 Cal.Rptr. 636

37 Cal.App.3d 822

Elva G. AYER, Plaintiff and Appellant, v. Philip K. BOYLE and Albert G. Buscaglia, Defendants and Respondents.

Civ. 30980.

Court of Appeal, First District, Division 4, California.

March 11, 1974.

Robert O. Wilhelm, Redwood City, for plaintiff and appellant.

George L. Cooke, San Francisco, for defendant and respondent Albert G. Buscaglia.

Tamba, Hill, Schneider, Leach & D'Andre by Andrew Schneider, San Francisco, for defendant and respondent Philip K. Boyle.

CHRISTIAN, Associate Justice.

Plaintiff, the widow of Eugene F. Ayer, appeals from a judgment of nonsuit entered in her action to recover damages for Ayer's death in the crash of a private aircraft piloted by respondent Buscaglia and owned by Buscaglia and respondent Boyle. The action was tried upon allegations that Ayer's death was caused by the negligence and willful misconduct of respondents. We hold that the airplane 'guest statute' is unconstitutional, and reverse the judgment as to Buscaglia because there was substantial evidence that the accident was caused by his negligence.

In early 1961, respondents purchased a Ryan aircraft of a type used as a trainer in World War II. The plane received its last annual inspection and relicensing on May 21, 1961. ¹ After the license expired in May of 1962, the plane was never submitted for relicensing; respondents spent their spare time during the next five and one-half years dismantling, refurbishing, and rebuilding the aircraft, intending to enter it in a competition for restored antique aircraft. Respondents removed the wings and engine and took them to a licensed shop for overhaul. They worked on the fuselage themselves for several months.

In the summer of 1967, respondents took all the parts to an aircraft repair shop in Half Moon Bay. There a licensed mechanic worked on the plane for about four months, primarily supervising detail work done by respondents. The mechanic last saw the aircraft two or three weeks before the accident. He considered it to be in excellent flying condition at that time subject to the completion of several minor items which he listed for respondents. He did not know whether respondents ever completed the work.

Respondents then requested another mechanic, authorized by the F.A.A. to inspect and license airplanes, to make an inspection of their aircraft in preparation for licensing. Approximately one month before the crash, the inspector made a preliminary examination of the plane and decided that it was not ready for inspection; cotter pins, safeties, and some instruments were missing, but one of the two cockpits was equipped with all the instruments needed for normal daylight flying. Inspection and licensing of the aircraft was never completed.

On the morning of October 8, 1967, respondents took the plane for its first flight since being rebuilt; Buscaglia, who was at the controls, flew the plane around the airport twice. After the flight, Boyle left the airport and did not return. That afternoon Ayer, who was Boyle's close friend and fellow employee, arrived at the airport and went for a ride in the airplane with Buscaglia. The flight ended in a crash which killed Ayer. An eyewitness to the crash testified that the plane came straight down, nose first. The engine was sputtering at first, but became silent on the way down.

Appellant's complaint alleged willful misconduct on the part of both respondents, in an effort to establish liability despite the provisions of the airplane guest statute (Pub.Util.Code, § 21406.) ² However, the complaint also alleged simple negligence, thus putting before the court a legal issue as to the effectiveness and applicability (thus, the constitutionality) of the guest statute. There was no evidence that decedent was a passenger for hire or that the pilot was intoxicated. Appellant argues that there was substantial evidence of willful misconduct, but that issue disappears from the case in the light of the California Supreme Court's decision in Brown v. Merlo (1973) 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212.

In Brown v. Merlo, the Supreme Court held that the automobile guest statute violates the equal protection guarantees of the state and federal constitution. The automobile guest statute, section 17158 of the Vehicle Code, denied a guest who rode in a vehicle 'upon a highway without given compensation for such ride' a cause of action against the driver for negligence; recovery was permitted if injury or death resulted from the intoxication or willful misconduct of the driver. ³ A statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purposes of the legislation. The court pointed out that the automobile guest statute establishes three distinct levels of classification: (1) it permits 'paying' automobile passengers to recover for negligence while denying recovery to 'guests'; (2) it precludes automobile guests from recovery for injuries caused negligently while other social guests are allowed to recover for such injuries; and (3) it distinguishes between subclasses of automobile guests, withholding recovery from 'guests injured while 'in a vehicle' 'during a ride' 'upon a public highway,' but permitting recovery by auto guests injured in other circumstances.' (Brown v. Merlo, Supra, 8 Cal.3d 855, 863, 106 Cal.Rptr. 388, 393, 506 P.2d 212, 217.)

Two justifications--the protection of hospitality and the elimination of collusive lawsuits--have traditionally been proffered to support this classification scheme. The court rejected both, analogizing to Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (where the distinctions between business invitee and social guest were abolished). In Brown v. Merlo the Supreme Court was not called upon for a holding as to the effectiveness of the airplane guest statute. But the opinion does mention the airplane guest statute: 'California law does contain two other provisions under which non-paying guests are generally deprived of a cause of action for negligence: the 'airplane guest statute' (Pub.Util.Code, § 21406) and the 'motorboat guest statute' (Harb. & Nav.Code, § 661.1), both of which are modeled after the automobile guest statute attacked in the instant case. Although these statutes do place automobile guests on an equal footing with some other guests in California, we cannot discern how automobile, airplane or motorboat guests can rationally be distinguished from all other guests in relation to an asserted state interest in protecting hospitality.' (8 Cal.3d at p. 864, fn. 5, 106 Cal.Rptr. at p. 394, 506 P.2d at p. 218.) This reference to the airplane guest statute suggests that the airplane guest statute is unconstitutional because it creates a class for no rational reason: equal protection is denied because reason does not support treating the class encompassing guests in airplanes, automobiles, and boats differently from the class comprising all other guests.

The analysis adopted by the court in Brown v. Merlo demonstrates that neither the promotion of hospitality nor the prevention of collusive lawsuits provides a rational basis for the classifications set up by the airplane guest statute. It would be irrational to assume that permitting recovery for negligence would restrict hospitality or that a host pilot is likely to crash his airplane in order to foster a collusive lawsuit by his guest.

We recognize that the analysis of the automobile guest statute in Brown v. Merlo is not wholly applicable to the airplane guest statute. First, the Aircraft Financial Responsibility Act (Pub.Util.Code, §§ 24350--24361, adopted after the accident in this case) does not require coverage of any person 'riding in or upon any aircraft without giving compensation' (Pub.Util.Code, § 24351, subd. (c)), even though the guest statute permits recovery where intoxication or willful misconduct is shown. In contrast, the coverage required by Vehicle Code sections 16451 and 16452 extends to any 'liability imposed by law' that the insured may have for the injuries of guests. Second, although the airplane guest statute, like the automobile guest statute, applies...