Boyd v. White
| Decision Date | 12 November 1954 |
| Citation | 128 Cal.App.2d 641,276 P.2d 92 |
| Parties | Ethel BOYD, Plaintiff and Appellant, v. Howard R. WHITE and Fred W. Sautter, individually and as co-partners doing business as Garden City Aero, Defendants and Respondents. Civ. 16014. |
| Court | California Court of Appeals Court of Appeals |
Morgan & Beauzay, San Jose, Lawrence Vold, San Francisco, for appellant.
Crist, Stafford & Peters, Palo Alto, for respondents.
Plaintiff brought this action to recover damages for fright and mental suffering and for injury to her real property caused when an airplane crashed into her home. The plane was piloted by Ernest J. Galindo, named as a defendant. Galindo had a student pilot certificate, and was taking flying lessons from Lenerville, who operated a flying school at the airport in question. Galindo, under Lenerville's supervision, had flown solo prior to the accident here involved. Lenerville, also named as a defendant, owned several planes, but, on the day here involved, when Galindo desired to rent a plane, all of Lenerville's planes were in use. Accordingly, pursuant to a prior oral arrangement with Howard R. White and Fred W. Sautter, partners in the operation at the same airport of the Garden City Aero, and also named as defendants, Lenerville rented a plane from White and Sautter, and, in turn, rented that plane to Galindo. It was that plane, operated by Galindo flying solo, that crashed into plaintiff's home. Galindo, although injured, was not killed. As a defendant he defaulted, although he appeared as a witness at the trial. Motions for a nonsuit and for judgment on the pleadings by Lenerville were denied. A motion for a nonsuit by White and Sautter was granted on the ground that the doctrine of absolute or strict liability, as a matter of law, did not apply to them. Judgment of nonsuit was entered in their favor. From that judgment plaintiff appeals. This appeal involves, therefore, only the problems revolving around the liability of White and Sautter, if any, and does not involve any problems relating to the liability of Galindo or of Lenerville.
This being an appeal from a judgment of nonsuit, all conflicts in the evidence must be resolved in favor of appellant, and every reasonable inference permitted by the evidence must be indulged in her favor. So considered, the facts are as follows:
In the year 1949 respondents operated the Garden City Aero at Reid-Hillview Airport in San Jose. They owned six planes. They rented them to pilots, flew charter and freight, and instructed students in flying. Located at the same airport were several other flying schools, including one operated by Lenerville. About a year before the accident, which occurred on August 28, 1949, respondents and Lenerville entered into a working arrangement to rent airplanes from each other on those occasions when one needed a plane but had none of his own immediately available. Under this arrangement, if one of the flying schools had a student, but all of its planes were in use, it would rent a plane from the other school to take care of that student. Under the arrangement the asking school paid the other school $5 an hour for the plane, and then the asking school rented it to its client for $8 or $10 per hour, dependent upon whether solo or dual instruction was involved. This arrangement was entered into because, obviously, it would not be good business for one flying school to send a client to the other school to rent a plane when the first school had none available, because the next time the client might not come back to the first school.
On August 28, 1949, Galindo then 24 years of age and regularly employed at a local cannery, came to Lenerville, a qualified instructor, to continue his flight instruction. Galindo had taken lessons from Lenerville in 1948, but this instruction had been interrupted for a period of 9 months prior to August 28, 1949, because Galindo, during such period, was in the Marines. During those 9 months Galindo had done no flying. Galindo had a duly issued 'Student Pilot Certificate.' During his prior instruction from Lenerville he had qualified to fly solo. His log book shows that he had some 15 solo flights in October of 1948 and 3 solo flights in November of 1948, November 8th being the date of his last flight before returning to duty with the Marines.
Galindo knew respondent White. Galindo testified that, before starting his flight instruction from Lenerville in October of 1948, on 3 occasions in June, July or August of 1948 he had discussed with White the possibility of buying a plane from him. Later that same year Galindo had approached the Garden City Aero to secure instruction as a student pilot under the G. I. Bill. The Garden City Aero refused to take Galindo on as a student, partly because it already had all of the students it could handle, and partly because White's partner thought Galindo, for some undisclosed reason, did not have a good character. At any rate, White recommended Lenerville as an instructor, referred Galindo to him, and Lenerville agreed to take on Galindo as a student. It also appears that in November, 1948, just before he went into the Marines, Galindo was accused by the authorities of 'buzzing' a house. Galindo testified that this occurred when he was making a simulated forced landing as part of his instruction. This incident occurred after the Garden City Aero had rejected Galindo as a student, and there is no evidence that White or his partner knew anything about it prior to the accident.
On August 28, 1949, Galindo talked with Lenerville about renewing his flight instruction, and Lenerville agreed to continue with the program. Lenerville had no planes then available. He went to White's office and arranged to rent a plane from him. Apparently Galindo did not accompany Lenerville to White's office, but Galindo was present when Lenerville and White came out of the latter's office and White showed 'us' which plane to take. The plane designated was a two-seater dual-operated training plane customarily used for flight instruction. White gave no instructions as to who was to fly the plane or how it was to be operated. He admitted that he understood that the plane was to be flown by some one other than Lenerville. Although White testified that he did not know who was to fly the plane, and Lenerville testified that he did not tell White that a student pilot was to fly the plane, from the evidence above set forth about White's past relationships with Galindo, and about White showing both Lenerville and Galindo what plane to take, it is a reasonable inference that White knew or should have known that Galindo was to fly the plane. Pursuant to the oral arrangement above discussed White charged Lenerville $5 for the rental of the plane for one hour, and Lenerville charged Galindo $10, which included the fee for instruction.
Although Galindo had flown solo in the past, because he had not flown for 9 months Lenerville recommended that he fly dual with Galindo as a check to see if Galindo was proficient enough to fly solo. The two flew for about 30 or 40 minutes when Lenerville became satisfied with Galindo's ability to fly solo. The plane was brought to earth and Lenerville got out. Galindo then took the plane up, heading towards Warm Springs Airport, the area between the two airports being considered by instructors and students as a practice area. Galindo testified that, after making a broad turn after the takeoff, he got up about 1,000 feet when the motor started to sputter and he began to lose altitude. It was a cool day and he thought perhaps his carburetor was beginning to ice up so he put on the carburetor heat. This did not help the situation, the motor continued to sputter and he continued to lose altitude. He attempted to turn back to the Reid-Hillview Airport, but saw that he could not make it. He then observed a schoolyard and a baseball field and decided to make a forced landing there. He circled this field, losing altitude all the while, with his motor missing and not taking the throttle. He was unable to reach the baseball field and crashed into plaintiff's house, causing the damages for which this action was brought. The expert evidence was to the effect that the application of carburetor heat would not cause the motor to miss. White testified that, in his opinion, the accident was caused by pilot failure, and that he thought that the Civil Aeronatics Administration had so found. Lenerville testified that he believed the accident was caused by motor failure.
The appellant filed a first amended complaint in five counts. The first cause of action was against Galindo for trespass, but alleges that respondents and Lenerville were in the business of renting planes to untrained pilots; that such business was extrahazardous; that respondents owned the plane involved and that such plane was rented to Galindo by Lenerville, the latter acting as the duly authorized agent of respondents. The second cause of action was against all defendants, including respondents, incorporates the agency allegations of count one and specially alleges that respondents, acting through their agent Lenerville, negligently permitted Galindo, an untrained and unlicensed pilot, to use the plane.
The third cause of action was directed against respondents, and charged them with negligent maintenance and repair of the plane which caused the accident. At the inception of the trial it was stipulated that this count should be dropped 'in that there is now no claim made that that Defendant [respondents] negligently maintained an airplane or that the airplane was in a defective condition.'
The fourth cause of action was against Lenerville alone, but the fifth was against respondents, alleging an absolute liability based on the agency allegations of count one. Thus, at the trial, only the second and...
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