Bledsoe v. Northside Supply & Development Co.

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Bledsoe v. Northside Supply & Development Co., 429 S.W.2d 727, 35 A.L.R.3d 599 (Mo. 1968)
• Decision Date: 08 July 1968
• Docket Number: No. 2,No. 52917,52917,2
• Parties: James BLEDSOE, Plaintiff-Appellant, v. NORTHSIDE SUPPLY & DEVELOPMENT COMPANY, a Corporation, Defendant-Respondent

Page 727

429 S.W.2d 727

35 A.L.R.3d 599

James BLEDSOE, Plaintiff-Appellant, v. NORTHSIDE SUPPLY & DEVELOPMENT COMPANY, a Corporation Defendant-Respondent.

No. 52917.

Supreme Court of Missouri, Division No. 2.

July 8, 1968.

Barnett, Montgomery, McClintock & Cunningham, Ross R. Barnett, Jackson, Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Warren S. Stafford, Springfield, for plaintiff-appellant.

Karl F. Schmidt, Robert M. Kroenert, John E. Besser, Kansas City, for respondent, Morrison, Hecker, Cozad, Morrison & Curtis, kansas City, of counsel.

LAURANCE M. HYDE, Special Commissioner.

Action for $100,000.00 damages for personal injuries sustained when an airplane plaintiff was operating fell at Alexandria, Louisiana. Verdict and judgment was for defendant and plaintiff has appealed. Plaintiff claims the cause of the plane crash was defective spark plugs.

Plaintiff alleges error in giving Instruction No. 3 submitting contributory negligence and in admitting certain testimony of defendant's expert witness H. A. Hindert. Defendant claims it was entitled to a directed verdict at the close of all the evidence saying plaintiff failed to prove defendant owned the airplane involved and also that plaintiff was guilty of contributory negligence as a matter of law. Our view is that plaintiff made a jury case and that Instruction 3 was prejudicially erroneous.

The evidence of defendant's ownership was a contract for the purchase of a Piper Airplane, 7752P, signed 'Northside Supply and Dev. Co. by Paul O. Johnson, Pres.,' dated March 16, 1964; and the following documents certified by the Supervisory Conveyances Examiner, Public Documents Section, Federal Aviation Agency, Oklahoma City, Oklahoma, as true copies of the original aircraft records pertaining to Piper PA--24--180 aircraft, Serial 24--2966, registration N7752P. These were Application for Registration of Northside Supply and Development Co. to Federal Aviation Agency (F.F.A.) for Piper PA--24--180 Model, Serial No. 24--2966, Registration N7752P, signed by Paul O. Johnson, President, dated March 16, 1964; and a Bill of Sale on a Federal Aviation form to Northside Supply and Development Co., dated March 16, 1964, signed Thunderbird Flying Services, Inc., by its President. The airplane crashed April 4, 1964, before registration was completed. Defendant cites Sec. 1401, Title 49, U.S. Code Annotated, concerning registration of aircraft, subsection (f) of which states: 'Registration shall not be evidence of ownership of aircraft in any proceeding in which such ownership by a particular person is, or may be, in issue.' However, that does not prevent the contract of sale and the bill of sale from being evidence of ownership. Defendant says there was no proof of execution or authenticity of these documents citing Cummins v. Dixon, Mo.Sup., 265 S.W.2d 386, 394, 47 A.L.R.2d 441 (sent back for full showing of facts on that issue); Johnson v. American Railway Express Co., Mo.App., 245 S.W. 1071, 1072. Defendant also says the copy of the contract of sale in evidence was not signed by the seller. However, this was explained by Orville Moore, an employee of the seller, who made the sale to defendant's president. He said the original copy was signed by the president of the seller and sent to defendant. The copy in evidence signed by defendant's president was the copy kept by the seller. Mr. Moore also identified the signature of the president of the seller on the bill of sale. We consider his testimony substantial evidence of the execution and authenticity of these documents. Defendant's claim that plaintiff was bound by testimony of himself and his witnesses, who were on the plane when it crashed, is based on isolated statements assuming defendant's president to be the owner of the plane, knowing only of his exercising control over it and inviting them to go in it with him. We hold this was insufficient to overcome conclusively the facts of the sale to defendant as shown by the documentary evidence and the salesman's testimony. We further note in a pretrial order it was stipulated that after the F.A.A. investigation 'defendant removed said plane to Dallas, Texas, on or about May 8, 1964, and it remained in defendant's possession until November 16, 1966, when the propeller and spark plugs were shipped by defendant's agent to defendant's attorney.' We hold the issue of ownership was a proper jury issue.

A statement of other facts shown by the evidence is necessary to pass on defendant's claim of contributory negligence and plaintiff's claim of error in Instruction No. 3 submitting contributory negligence. Plaintiff worked for defendant's president Paul O. Johnson in motels owned by him but was never employed by defendant. He was a licensed pilot and had been flying for about 20 years. He had flown other planes at the request of Johnson and went to Wichita, Kansas, to get the plane herein involved at Johnson's request. He flew it from there after flying about 30 hours with the seller's representative checking him out on it. He later flew it again to Wichita for minor repairs by the seller and on the way back noticed a sputtering noise which he said cleared up. He explained to Johnson what happened and told him he 'presumed it was the plugs that caused the trouble and that he ought to have them checked.' Plaintiff said Johnson 'said he would do so and for me not to worry about it.' Plaintiff had a witness who heard this conversation and corroborated plaintiff's version of it. Two or three days later, they started on the trip during which the plane crashed. Plaintiff received no pay for flying the plane, flying it as a courtesy to Mr. Johnson and his firm. At Jackson, Mississippi, two other men, Joe Kirkland and G. O. Tackett, were invited by Johnson to go with him to Texas and Mexico. Plaintiff said they had no trouble taking off from Jackson but at Alexandria, Louisiana, stopped to check the weather. They took off with the same load they had at Jackson, having filled with gas at Alexandria. Plaintiff said he had a normal full power takeoff estimating the plane was in the air at about 800 feet on the runway, but after he got up 'approximately five, six hundred feet' and made a turn the engine made a big exhaust noise, a backfire, and the engine and the propeller stopped immediately. Mr. Kirkland who was on the plane gave substantially the same account as to what happened. Mr. Tackett, the other passenger, was made unconscious and had no recollection as to what happened. Johnson did not testify. Plaintiff had not pulled up the landing gear at that time. Before the crash, plaintiff turned off the ignition to prevent fire when he could not get the engine started. Plaintiff said in a deposition that his takeoff runs at both Jackson and Alexandria were 2500 feet, which was nearly half the length of these runways. The F.A.A. examination report on the plane showed its spark plugs were heavily leaded. Plaintiff had expert testimony that this could cause backfire into the intake manifold which could cause the engine to stop.

Defendant states two grounds for its claim that plaintiff was guilty of contributory negligence as a matter of law. First: that the plane was overloaded and that it was plaintiff's responsibility to determine this and not to attempt to fly an overloaded plane. Second: that plaintiff had prior knowledge of defective spark plugs and that it was his responsibility to know this condition had been corrected before flying the plane, citing Civil Air Regulations: '91.3(a) The pilot in command of an aircraft is directly responsible for and is the final authority as to the operation of that aircraft.' '91.29(a) No person may operate a civil aircraft unless it is in an airworthy condition. (b) The pilot in command of a civil aircraft is responsible for determining whether that aircraft is in condition for safe flight. He shall discontinue the flight when unairworthy mechanical or structural conditions occur.' See also 91.31(a) hereinafter quoted. Plaintiff's petition originally filed by other lawyers, who did not remain in the case, alleged as a ground of negligence, that under the rules of F.A.A. and the manufacturer the gross weight should have been no more than 2550 pounds but that the takeoff was made at defendant's request with 2703 pounds or 153 pounds more than the authorized load. At the trial, these original allegations were withdrawn but defendant contends they amounted to a judicial admission that the plane was overweight at the takeoff. Plaintiff said he would not have gone up if he knew the plane was overloaded and that he did not think he could get the plane off the ground with such an overload. Defendant relies on Wehrli v. Wabash Railroad Co., Mo.Sup., 315 S.W.2d 765, but this was not an abandoned pleading case. Our view is that the abandoned allegations are not judicial admissions binding on plaintiff that the plane was overweight when he took off at Alexandria but were admissible in evidence as an admission against interest. An admission in an abandoned pleading is not conclusive. Vanausdol v. Bank of Odessa, 222 Mo.App. 91, 5 S.W.2d 109; Kirk v. Metropolitan Life Ins. Co., 225 Mo.App. 756, 38 S.W.2d 519; Harvedt v. Harpst, Mo.Sup., 173 S.W.2d 65. See also 41 Am.Jur. 436, Pleading, Sec. 202, p. 508, Sec. 314; 29 Am.Jur.2d 748--755, Evidence, Secs. 693--696; Annotation, 52 A.L.R.2d 516, 524, stating, '(T)he original pleading is admissible against the pleader in the proceeding in which it was filed, as evidence of admissions against interest contained therein.' We said in Andrus v. Business Men's Accident Ass'n, 283 Mo. 442, 223 S.W. 70, 75, 13 A.L.R. 779: 'The abandoned pleading was admissible in evidence, but was not conclusive as to the fact alleged. It could be weighed like any other admission of defendant.' Likewise in Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21, we further stated: 'When put in evidence *...