Barnes v. Northwest Airlines, s. 35229--35231

CourtSupreme Court of Minnesota (US)
Citation47 N.W.2d 180,233 Minn. 410
Docket NumberNos. 35229--35231,s. 35229--35231
Decision Date22 March 1951

Page 180

47 N.W.2d 180
233 Minn. 410
BARNES et al.
Nos. 35229--35231.
Supreme Court of Minnesota.
March 22, 1951.

Page 182

Syllabus by the Court

1. Where the attendant circumstances allow a jury to find that a contract in itself does not express the true relationship of the parties thereto, the jury may determine from the facts presented relative to the conduct of the parties whether an independent-contractor relationship existed as to a party thereto.

2. A court, through its instruction, is not authorized to give prominence to and emphasize particular facts disclosed by the evidence, thus singling out elements or views upon the controversy which were proper for argument and discussion by counsel, but which might very justly be declined to be thus noticed by the court.

3. All that is required in the way of instructions is that the charge as a whole convey to the jury a clear and correct understanding of the law of the case. On the issue of independent contractor, it is not required to set forth in the charge all the facts affecting the relationship disclosed by the evidence where this would require a review of the evidence disclosed by over two weeks of trial and approximately 150 exhibits.

4. A part of an instruction which, standing alone, might be considered erroneous, furnishes no ground for reversal if, taken in connection with the whole charge, no reversible error appears.

5. Where there is conflicting evidence as to the applicability of certain regulations, directives, and memorandums issued by government agencies referred to by the contract as having supervision and control of carrying out the project embraced therein, it was not error [233 Minn. 411] for the trial court to allow these to go to the jury for their determination as to whether the parties were in fact governed thereby.

6. An instruction on an abstract principle of law, harmless under the circumstances and not calculated to mislead the jury, does not constitute reversible error.

7. Under the facts and circumstances here, the failure of the trial court to specifically instruct the jury to disregard the claimed prejudicial remarks of counsel did not constitute reversible error.

Page 183

8. Records of investigation and inquires containing expressions of opinion or the exercise of judgment and discretion are not admissilbe in evidence as public records.

Bauers & Carlson, Robert W. Barnett and Wm. H. DeParcq, all of Minneapolis, for appellants.

Clarence U. Landrum, U.S. Dist. Atty., Linus J. Hammond, Sp. Asst. to U.S. Atty., St. Paul, for respondent.


Appeals by plaintiffs from orders of the district court denying their motions for new trials after verdicts for defendant.

[233 Minn. 412] These cases, which were consolidated for trial, arise out of an airplane accident which occurred on December 8, 1945, at Billings, Montana. Decedent in the Thompson case and the plaintiffs in the two other cases were soldiers in the United States Army and were being ferried from Newark, New Jersey, to Paine Field, Washington, for the purpose of being discharged. While attempting to land at the airport at Billings, the plane in which they were passengers crashed after cutting off the tops of some trees a half mile south of the south boundary of the airport, which is located on a plateau several hundred feet above the city at Billings.

The flight to Minneapolis appears to have been routine. There, Captain George D. Miller and copilot Vernon Pfannkuch took over the plane, which stopped at Fargo and took on fuel. A cold front and snow reached Billings at about 1:13 a.m. on December 8. At that time visibility was recorded at ten miles, and it decreased gradually thereafter. At 2 a.m., the visibility was three-fourths of a mile and at 2:13 a.m. a half mile, at which time it was snowing. As the plane approached Billings, it was first contacted by control tower operator Robinson at 1:59 a.m. over a fan marker known as 'Nibbe,' which is about 25 to 30 miles northeast of the Billings airport. It then reported its height at 5,500 feet above sea level, when the plane was cleared to enter the traffic pattern to land on runway 34, the north-south runway at the Billings airport. It further appears that the altimeter reading at the field, above sea level, was given to the pilot so that he could set his altimeter accordingly for the purpose of landing. The weather bureau and the control tower personnel observed the lights of the plane about 2:11 a.m. flying westward from the south edge of the field at a height above the field of between 200 and 400 feet. The control tower operator saw the plane pass to the west and then start to turn to the left, or south, for the purpose of lining up with runway 34. Its speed appeared to be normal. He next observed the lights coming into view again below where he usually saw them on approaching planes. He advised the pilot to 'pull up,' but he received[233 Minn. 413] no response from the plane, which crashed about a half mile south of the field. It appears from the record that immediately before the crash a resident in the vicinity where the plane went down heard it; that at first the motor sounded normal; that he then heard a loud gunning of the plane's motors; and that it then crashed.

The trial before a jury resulted in a general verdict for defendant in each case. From a denial of their motions for a new trial, plaintiffs appealed to this court. Numerous assignments of error were made, but we shall regard only those which are determinative of the case.

The theory upon which plaintiffs have proceeded is that defendant was an independent contractor and that the principles of law relating to independent contractors are applicable here in determining its liability to plaintiffs. Defendant contends that the evidence shows that the military forces had the authoritative power and the right to control and did control the manner and means of the performance of the services on the project, and that the work of the project was the work of the military forces, so as to gain governmental immunity.

We shall briefly summarize the contractual relationship of the United States government and defendant. Pursuant to statutory authority, 10 U.S.C.A. § 1361, the President of the United States, on December 13, 1941, issued and promulgated his Executive Order No. 8974, 6 Fed.Reg.1941,

Page 184

Part 6, p. 6441, wherein the secretary of war was authorized and directed to take possession and assume control of any civil aviation system or systems, or any part thereof, to the extent necessary for the successful prosecution of the war then in progress. Pursuant to the power entrusted to him, the secretary of war used the facilities and personnel of the domestic air carriers for many military purposes and projects during the war period. Gill v. Northwest Airlines, Inc., 228 Minn. 164, 36 N.W.2d 785; Jackson v. Northwest Airlines, Inc., D.C., 75 F.Supp. 32. Because of the exigency created by the sudden outbreak of hostilities,[233 Minn. 414] it became necessary to expedite proposed contractual relations between the government and private industry by issuing 'Letters of Intent.' These letters described briefly the work to be performed by the parties thereunder and provided that a contract covering the work to be done would be forthcoming. In the early part of 1942, defendant began operating under these letters of intent, and in February 1943 a contract was negotiated between defendant and the United States government, which contract was referred to as the 'Overall Contract.'

[233 Minn. 415] Under this overall contract, the air carriers and defendant agreed to perform for the United States, at its direction, military services such as air transportation, modifications, etc., at such time as the government would direct by 'Service Orders,' the costs to be paid by the United States, and the air carriers to be paid a fixed fee for the services performed on each project. The overall contract provided as follows: '(e) The extent and character of the services to be performed by the Contractor under any Service Order issued under this Contract and the manner of performance thereof shall be subject to the general supervision, direction, control and approval of the Contracting Officer or of the person designated in the Service Order, and the Contractor shall report and be responsible to the Contracting Officer or to such other person as may be so designed (designated). Unless otherwise provided in such Service Order, the person designated in such Service Order may delegate any or all of his powers to supervise, direct, control and approve such services, and thereupon shall transmit notice thereof to the Contractor in the manner provided in Paragraph (c) of this Article for the transmission of Service Orders.'

By article 24 of the overall contract, the air carriers were not to be held liable for the loss, destruction, or damage to government property used in performing the services, except through the wilful misconduct of its corporate officers.

Under special service Order No. 11, defendant began the transportation of personnel designated by the military from the east to the west coast. For this purpose, defendant was provided by the government with a number of C-47B type government airplanes, one of which was the airplane involved in the fatal crash. In brief, the service order directed defendant to furnish air transport services and the miscellaneous services in housing and feeding passengers incidental to such service between the above-mentioned points along defendant's established routes. By the service order, a specified sum was made available to cover the cost of the services mentioned above and, in addition, a specified fee was set to be paid defendant for these services. The service order provided also that the contract would be amended to the extent necessary to reimburse the...

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