Bell Helicopter Co. v. Bradshaw

• Decision Date: 28 December 1979
• Docket Number: No. 1424,1424
• Parties: BELL HELICOPTER COMPANY, a Division of Textron, Inc., Appellant, v. Phil BRADSHAW, Sr., Maurice Hunsaker, Joe Ingle d/b/a Coastal Helicopters and Joe Smith, Appellees.
• Court: Texas Court of Appeals

Page 519

594 S.W.2d 519

BELL HELICOPTER COMPANY, a Division of Textron, Inc., Appellant, v. Phil BRADSHAW, Sr., Maurice Hunsaker, Joe Ingle d/b/a

Coastal Helicopters and Joe Smith, Appellees.

No. 1424.

Court of Civil Appeals of Texas, Corpus Christi.

Dec. 28, 1979.

Rehearing Denied Feb. 14, 1980.

Edward P. Fahey, Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellant.

David L. Perry, William R. Edwards, Edwards & Perry, George W. Shaffer, Mahoney, Shaffer, Hatch & Layton, Charles R. Cunningham, Howard F. Sudduth, Corpus Christi, S. Benton Davies, Jr., Guy P. Allison, Allison & Davies, San Antonio, Guy H. Allison, Corpus Christi, for appellees.

OPINION

BISSETT, Justice.

This case involves an appeal from a judgment for the plaintiffs in a jury tried products liability action brought after the July 20, 1975, crash of a helicopter. Plaintiffs Phil Bradshaw, Sr., and Maurice Hunsaker, who were passengers on the ill-fated helicopter, brought suit against Bell Helicopter Company, the original manufacturer and seller of the craft, for personal injuries under negligence and strict liability; against Joe Ingle, individually and d/b/a Coastal Helicopters, the owner of the helicopter, for negligence; against Joe Smith, the pilot at the time of the accident, for negligence; and against R. J. Monahan Helicopter Service, a helicopter service and repair facility, under strict liability. Defendants Ingle and Smith, in turn, brought cross actions against Bell for damage to the helicopter and personal injuries, respectively. All defendants sought contribution and indemnity from each other. At the conclusion of a month long trial, the cause was submitted to the jury on 101 special issues. Based upon the jury's findings, the trial court rendered judgment that:

(1) plaintiffs Bradshaw and Hunsaker take nothing against the defendant R. J. Monahan Helicopter Service Company;

(2) plaintiff Bradshaw recover $1,059,404.35 against the defendants Bell, Ingle and Smith (3) plaintiff Hunsaker recover $2,531,714.43 against the defendants Bell, Ingle and Smith;

(4) Defendants Ingle and Smith receive full indemnity from defendant Bell for any damages recovered against them by plaintiffs Bradshaw and Hunsaker;

(5) Ingle, as a cross-plaintiff, recover the sum of $116,461.68 against Bell;

(6) Smith, as a cross-plaintiff, recover the sum of $12,633.90 against Bell.

Bell has appealed. Seventy-nine (79) points of error are presented by Bell. Ingle and Smith were found by the jury to have been negligent in several respects concerning maintenance and operation of the tail rotor blades of the helicopter. These findings are not attacked in this appeal. The parties will henceforth be referred to either as "plaintiffs" or "defendants," as they were in the trial court, or by name.

I JURISDICTION OF THE APPEAL

Prior to a discussion of the relevant facts in this case, we deem it necessary to address the challenge made by plaintiffs and cross-plaintiffs, wherein they contend that Bell failed to timely file its appeal bond and thereby failed to perfect its appeal, which, if true, would require this Court to dismiss the appeal of Bell for want of jurisdiction. Texas Employers' Insurance Association v. Martin, 162 Tex. 376, 347 S.W.2d 916 (1961); Martinez v. Euler, 524 S.W.2d 814 (Tex.Civ.App. Corpus Christi 1975, no writ).

The relevant procedural history of this case began May 15, 1978, when the trial court rendered its final judgment. Bell then filed its original motion for new trial on May 25, 1978, and its amended motion for new trial on June 14, 1978. The next day, June 15, 1978, a Rule 329b(3), T.R.C.P., agreement extending time for determination of the amended motion for new trial to a date certain was signed by all the parties to the original action except Monahan, against whom a take nothing judgment had been rendered. Subsequently, on August 10, 1978, an order overruling Bell's amended motion for new trial was signed by the trial judge. Bell then filed its appeal bond on September 8, 1978.

Plaintiffs' argument is that, without Monahan's signature, the agreement to extend time for determination of the amended motion for new trial was invalid, and in the absence of a valid extension agreement, Bell's amended motion for new trial was overruled by operation of law on July 29, 1978. In such event, Bell's appeal bond was due to be filed no later than August 28, 1978. The issue raised by this contention is whether Monahan was one "of the parties in the case" whose signature is required for an effective agreement to extend the time for determination of an amended motion for new trial under T.R.C.P. 329b(3).

The meaning of Rule 329b in its reference to "parties in the case" appears to be an issue of first impression in this State. ¹ The Rule, in pertinent part, provides:

"3. All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. Any such day certain shall not be more than ninety (90) days after such original or amended motion is filed. (Emphasis added)"

The essence of plaintiffs' contention that Monahan was a party "in the case" at the time the agreement was signed rests upon the assumption that a party "in the case" should logically mean a party litigant over whom the trial court retains jurisdictional power to affect such party's rights in the concerned case. Following this line of reasoning, they argue that, at the time the agreement was signed, there had been no order of severance as to Monahan and, consequently, the trial court retained jurisdiction to grant a new trial as to all the parties, including Monahan. They further argue that this Court, if it has jurisdiction of the appeal, has jurisdiction to reverse Monahan's favorable judgment if it determines that the rights of the appealing and non-appealing parties are sufficiently interwoven and dependent on each other.

In their motion for final judgment on the verdict, plaintiffs did not request the court to enter judgment against Monahan. Accordingly, the trial court entered a take nothing judgment in favor of Monahan. Understandably, Bell's motion for new trial did not complain of anything regarding Monahan. We think it only natural that Bell did not consider Monahan to be a necessary party to any agreement to extend time for considering Bell's motion for new trial. Such motion was directed solely to those parties of which Bell had standing to complain. We hold that Monahan was not one of the "parties in the case" for purposes of the extension agreement. To hold otherwise would create a serious injustice. We consider the rule to be that a Rule 329b(3) extension agreement need only be signed by those parties seeking a new trial and those parties against whom the movants have a right to complain in the motion for new trial, and against whom complaint is actually made. Plaintiffs' and cross-plaintiffs' challenge to the jurisdiction is overruled.

II THE EVIDENCE GENERALLY

The helicopter in question was acquired by Houston Helicopters, an authorized Bell service station, in 1969. It was purchased by Ingle from Houston Helicopters in 1973. On July 20, 1975, Bradshaw engaged Ingle to furnish a helicopter and pilot to fly Hunsaker and him to Freer, Texas, for an aerial survey of a 72,000 acre ranch nearby. Smith, an employee of Ingle and a licensed helicopter pilot, piloted the helicopter in question from Ingle's premises in Corpus Christi to a highway intersection near the ranch where he picked up Bradshaw and Hunsaker, and proceeded to fly over the ranch. During the helicopter's return flight one of its tail rotor blades broke off. The failure and loss of the tail rotor blade resulted in the additional loss of the tail rotor hub and gear box, all of which caused a shift in the helicopter's center of gravity and loss of directional control. As a result, the helicopter began to spin clockwise with its nose down. Smith, in an emergency maneuver, cut power to attempt an autorotative landing, which is a power-off, or dead-stick descent, but with little success. The helicopter crashed. Smith, Bradshaw and Hunsaker suffered severe injuries.

At all times pertinent to this appeal, the helicopter in question was equipped with type 102 tail rotor blades. The 102 design had been manufactured and distributed by Bell since the 1950's. The particular 102 tail rotor blade which broke on the day in question had been manufactured by Bell sometime prior to 1970.

When Bell originally sold the helicopter in question in 1961, the 102 blade represented the most advanced state of the art in tail rotor blade technology. It had a designed service life of 600 hours where the use of the helicopter was commercial and not military. In the case at bar, the evidence shows that the 102 blade which broke had been in use for more than 600 hours.

The 102 tail rotor blade in commercial use had a history of in-flight fatigue fracture failures. There was evidence that even one failure communicated to Bell would have constituted notice to Bell of a safety problem. Most of these in-flight fatigue fracture failures were chiefly attributable to failure by the respective owners and operators to comply with Bell suggested, and FAA mandated, inspection and maintenance requirements.

Inspections required of the 102 type tail rotor blade were numerous and detailed. A daily inspection was required by FAA before the first flight of each day and after each refueling. The scope of this inspection was intended to discover fatigue cracks and thereby prevent failure of tail rotor blades due to such cracks.

There was expert testimony at the trial that the fatigue fracture in question began as a crack in...