Baruch v. Beech Aircraft Corporation
| Citation | 175 F.2d 1 |
| Decision Date | 02 August 1949 |
| Docket Number | No. 3765.,3765. |
| Parties | BARUCH v. BEECH AIRCRAFT CORPORATION. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Wayne Coulson and Paul R. Kitch, Wichita, Kan. (Howard T. Fleeson, Homer V. Gooing, Dale M. Stucky, and Donald R. Newkirk, Wichita, Kan., on the brief), for appellant.
W. E. Stanley, Wichita, Kan. (Claude I. Depew, Lawrence Weigand, William C. Hook, and Lawrence E. Curfman, Wichita, Kan., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
The appellant, Belle W. Baruch, brought this suit in tort against appellee, Beech Aircraft Corporation, to recover the value of an airplane sold by Beech to her, and delivered to her agent and pilot, who crashed and destroyed it while taking it off Beech's private airport. The suit is based upon the premise that the pilot and agent breached his employment contract by attempting to fly the plane while intoxicated, and that Beech, through its agents, wrongfully induced or brought about the breach by actively assisting the pilot in attempting to fly the plane, and is therefore liable as a tortfeasor.
On a trial of the case without a jury, the trial court treated the action as founded upon negligence, and held that although Beech was negligent, Baruch's pilot and mechanic were both guilty of contributory negligence, barring recovery; that the pilot's state of intoxication did not justify the invocation of last clear chance as applied in such cases under Kansas law, and accordingly gave judgment for Beech.
The facts as found by the court are not materially in dispute. Belle Baruch, a citizen of South Carolina, purchased a twin-engine dual control airplane from Beech at Wichita, Kansas. Her pilot, Horton, and mechanic, Zozula, were sent to Wichita, with written authority in Horton to accept delivery. On April 6, 1946, the plane was delivered to Horton as her agent and employee, and he took possession of it, flew it to Kansas City, back to Beech's private airport, then down to Winfield, Kansas, and back to the airport, where it was placed in Beech's hanger as a gratuitous bailee. On the next morning, at Horton's request, Beech's courtesy car picked him up at his hotel and took him to the home of Beech's service manager, DeSpain. He arrived there about nine o'clock, and while there took two or three large drinks of whisky. Before leaving, he instructed the mechanic, Zozula, and a passenger to proceed to the airport for the purpose of servicing and readying the plane for a flight to Wilmington, Delaware. Horton, DeSpain and another Beech employee named Hill arrived at the hanger about eleven o'clock. The plane had been removed from the hanger and was standing on the apron of the runway. Horton continued to drink from a bottle taken from his own suitcase, and became noticeably intoxicated. On three occasions, DeSpain urged him not to attempt to fly the plane that day, but to wait until the next day. Horton insisted that he was not intoxicated, but was merely attempting to scare his passenger, Meyers. He boasted that he had frequently flown airplanes while under the influence of liquor, particularly during his service overseas in the World War. He entered the plane along with Zozula and the passenger, and attempted to start the motors, but apparently was unable to do so. Observing the pilot's difficulty, and fearing that he would run the battery down, Beech's agent, DeSpain, entered the plane and adjusted the throttles to proper position, but again urged Horton not to attempt to take it off. Horton's reply was for DeSpain to get out of the plane — that he was going to Wilmington. After DeSpain left the plane, Baruch's mechanic Zozula, pressed the starter button, the motors started, Horton taxied the plane down to the runway, warmed it up, skillfully turned it into position, and started the takeoff with a sixteen mile crosswind. After reaching an altitude of some 50 to 100 feet, he attempted a quick climb and a down-wind turn, resulting in a crash which killed the pilot and the mechanic, and completely destroyed the plane. The court found that the down-wind maneuver was extremely foolhardy and dangerous, and that Horton, an experienced pilot, would not have attempted such maneuver except for his state of intoxication.
Appellant invokes the rule which, according to its earliest concept, gave a right of action against a party who, without legal justification, maliciously procures or induces the breach of a contract between two other parties. Lumley v. Gye, 2 E.&B. 216 (1853); Bowen v. Hall, 6 Q.B.D. 333 (1881); Temperton v. Russell, 1 Q.B. 715 (1893); Beekman v. Marsters, 195 Mass. 205, 80 N.E. 817, 11 L.R.A.,N.S., 201, 122 Am.St. 232, 11 Ann.Cas. 232; Aikens v. Wisconsin, 195 U.S. 194, 195, 204, 25 S.Ct. 3, 49 L.Ed. 154. See also 36 Harv.L.R. 663. And which, according to its modernized version, gives a right of action against one, who without privilege or justification, intentionally or negligently invades or interferes with the contractual...
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