Beck v. Wings Field, Inc., 7668.

• Decision Date: 30 June 1941
• Docket Number: No. 7668.,7668.
• Citation: 122 F.2d 114
• Parties: BECK v. WINGS FIELD, Inc.
• Court: U.S. Court of Appeals — Third Circuit

122 F.2d 114 (1941)

BECK v. WINGS FIELD, Inc.

No. 7668.

Circuit Court of Appeals, Third Circuit.

June 30, 1941.

Joseph W. Henderson, of Philadelphia, Pa. (Rawle & Henderson, and Thomas F. Mount, all of Philadelphia, Pa., on the brief), for appellant.

Alfred L. Wolf, of Philadelphia, Pa. (Bernard Eskin and Wolf, Block, Schorr & Solis-Cohen, all of Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, CLARK, and JONES, Circuit Judges.

JONES, Circuit Judge.

This is an appeal from a judgment entered by the court below on a jury's verdict for the plaintiff in a civil action for damages for personal injury and property damage due to the defendant's alleged negligence. For the consideration of the principal matter assigned here for error, a brief statement of the material facts will suffice.

While the plaintiff, a student pilot, was landing his aeroplane on a flying field owned and operated by the defendant for public use, the plane, which was then running along the ground, turned over with consequent injury to the plaintiff and damage to the plane. It is the plaintiff's allegation that there was a depression in the portion of the flying field where he was attempting to make his landing and that the defendant's maintenance of a public flying field with such a depression unmarked constituted negligence which was the proximate cause of the plaintiff's accident.

The plaintiff called as a witness one Bullard. Counsel for the defendant immediately asked for an offer of proof at side bar. At that point, the record indicates no more than a notation, "(Discussion at side bar.)" In the appellant's statement of the case it is said that "The plaintiff called Edward Bullard, an experienced flier, for the purpose of giving his opinion as to the depression in question * * *." This assertion, the appellee does not controvert by counterstatement, presumably agreeing with the appellant's statement. Rule 26-5 (c) of this court. The appellant also states in its printed argument that "Plaintiff's counsel stated that the witness was being called as an expert as to the alleged unsafe condition of the portion of the field involved in the plaintiff's accident." Whatever the scope of the offer may have been, at the conclusion of the side bar discussion, counsel for the plaintiff resumed his direct examination of the witness. After eliciting from him his qualifications as an aviator and his knowledge of flying fields in general and of the defendant's field in particular, plaintiff's counsel asked, — "Are you familiar with the scene of Mr. Beck's accident?"

To which the witness responded, — "Yes, sir, I cracked up in the same ditch."

Counsel for the defendant immediately moved for the withdrawal of a juror and the direction of a mistrial. The court indicated an intention to overrule the motion and said to the jury, — "I want to say to the members of the jury that I want you to disregard that evidence entirely. That has nothing to do with this case."

Counsel for the defendant continued to urge his motion vigorously, in the course of which he said, — "I think the statement as made is very prejudicial to our case. It is something that I am thoroughly familiar with, because I saw this gentleman on the field after his crack-up, and I could have a complete defense to it, which has nothing to do with this particular case, and it happened considerably afterwards, and I anticipated that just about something like this would come out, and it certainly is a ground, as far as we are concerned, that this jury should not go further in considering the matter. It hasn't anything to do, it wasn't near this ditch, and yet it is in this case."

There was further discussion by both counsel. All of this took place in the hearing of the jury. The court then called a recess to hear counsel further in chambers. Upon resuming the trial, the court said to the jury, — "Members of the jury, as I said to you before we took a recess, I want you in the consideration of this case to disregard that statement made by the witness. That statement was highly improper. If he did have an accident it may have been this witness's fault, it may have been the fault of the field, I don't know, and you should not in any way consider it. It should have no bearing whatever in the deliberation and your consideration in this particular case, and I trust that when you get to the jury room you will erase this reference from your minds, because it would be very unfair to have that considered by any single juror in connection with this case."

Counsel for the defendant then formally took an exception to the court's refusal to withdraw a juror and the court recognized counsel for the plaintiff for further questioning of the witness. Immediately thereupon, counsel for the plaintiff said that he had "No more questions"; defendant's counsel did not cross-examine; and the witness left the stand.

The jury returned a verdict for the plaintiff, which, incidentally, was somewhat inconsistent in amount, considering that, necessarily, the jury must have found the defendant negligent. The verdict returned was for the exact amount agreed upon by the parties in pre-trial conference as being the extent of the damages to the plane only. It is evident, therefore, that the jury awarded the plaintiff nothing for his personal injuries, which according to his proofs, were serious. The inconsistency of the verdict may well represent the compromise of a conflict among the jury engendered by prejudice; and the possibility of the uneradicated effect of admittedly improper matter in the jury's disposition of the case is the thing to which this appeal directs our attention.

The defendant filed a motion for a new trial, giving, inter alia, as a reason in support...