Broadview Leasing Co. v. Cape Central Airways, Inc.

• Decision Date: 04 May 1976
• Docket Number: No. 36935,36935
• Parties: BROADVIEW LEASING COMPANY et al., Plaintiffs-Appellants, v. CAPE CENTRAL AIRWAYS, INC. and City of Cape Girardeau, Missouri, Defendants-Respondents. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 553

539 S.W.2d 553

BROADVIEW LEASING COMPANY et al., Plaintiffs-Appellants, v. CAPE CENTRAL AIRWAYS, INC. and City of Cape Girardeau, Missouri, Defendants-Respondents.

No. 36935.

Missouri Court of Appeals, St. Louis District, Division Three.

May 4, 1976.

Motion for Rehearing or Transfer Denied June 15, 1976.

Application to Transfer Denied Sept. 13, 1976.

Oliver, Oliver & Jones, James F. Waltz, Cape Girardeau, Morrison, Hecker, Curtis, Kuder & Parrish, Byron J. Beck and Lex A. Passman, Kansas City, for plaintiffs-appellants.

Jackson, Thomasson, Dickerson & Gilbert, Donald P. Thomasson, Finch, Knehans, Cochrane, Bradshaw & Strom, Richard G. Steele, Cape Girardeau, for defendants-respondents.

SIMEONE, Presiding Judge.

This is an appeal by three plaintiffs-appellants--Broadview Leasing Company, National Enterprises, Inc. and Astro Rentals, Inc.--from a judgment entered by the Circuit Court of Cape Girardeau County on January 24, 1975, in favor of the defendants Cape Central Airways Inc. and the City of Cape Girardeau. ¹ The appellants raise three points urging this court to enter judgment in their favor or in the alternative to reverse and remand the cause for a new trial. For reasons hereinafter stated, we affirm.

I The Facts

This cause is, in essence, a suit by three plaintiffs as bailors to recover damages against the bailee, Cape Central Airways, for the loss of certain aircraft and equipment which was in the possession of Cape Central and which was destroyed by fire in Hangar No. 1 located at the Cape Girardeau airport.

Each of the three plaintiffs pleaded in three counts, ² which can be described as (1) general negligence, (2) a contract of bailment and (3) specific negligence. Cape Central in its answer denied the pertinent allegations of the petition. On the day preceding the trial, Cape Central by leave amended its answer by adding the defense of ". . . act of God, to-wit, lightning, and not by any negligence on the part of this defendant." The case was submitted on a bailment theory that, if the jury believed that the property was stored by the defendant for a price and while in the possession of defendant the property was destroyed and could not be returned, verdict must be for plaintiffs unless it found under other instructions that Cape Central exercised ordinary care.

The facts of the case are quite voluminous. The City of Cape Girardeau, a municipal corporation, owned and controlled a municipal airport which included taxiways, buildings and hangars. Cape Central Airways, Inc. had been operating the airport since 1950. On June 1, 1967, the City entered into two agreements with Cape Central. One was an 'Airport Manager's Agreement,' and the other was a 'Fixed-Base Operator's Contract.' The manager's agreement provided that the City desired to employ Cape Central for a period of ten years and designated Cape Central as the 'manager' of the airport. Mr. John T. Seesing was designated as the first manager. Under the agreement, Cape Central had varied and sundry duties. For its services Cape Central was to receive a certain compensation.

The fixed base operator's contract ³ provided, inter alia, that the City lease to Cape Central certain buildings, including three hangars. 'All of the wooden buildings, including the hangars, are leased hereunder subject to the right of (the City) to demolish any one of them should any one of them become unsafe or unfit . . ..' Under this agreement, Cape Central agreed to pay the City a certain sum per month and was required to perform certain services at the airport including '. . . storage for airplanes or aircraft in hangars or in other buildings.'

One of the plaintiffs, Broadview Leasing, was the owner of a 1971 Cessna 310 aircraft valued at $90,000.00 which had just been purchased a month before from Cape Central. On July 15, 1971, the day the fire occurred, the aircraft was in Hangar No. 1, an old wooden hangar constructed during World War II, for the purpose of installing additional avionics equipment in the plane. The aircraft was normally housed in a metal hangar west of the wooden hangar but, on July 15, 1971, was in Hangar No. 1 for such purpose.

National Enterprises was the owner of a 1968 Piper Cherokee Arrow valued at approximately $17,000.00. This aircraft was stored in the hangar on July 15, 1971, for a fee.

Astro Rentals, Inc. was the owner of certain aircraft equipment--a King Model DME (Distance Measuring Equipment) valued at $1755.00, which was also destroyed in the fire.

The tragic event which destroyed the two aircraft and equipment took place in the early morning hours of July 15, 1971. On that date, Mr. Ralph R. Schnurbusch, Jr., employed by Cape Central as night watchman and line service attendant, was on duty at the airport. The night was a stormy and rainy one--' it was storming and raining and lightning and the wind was blowing, just like a regular thunderstorm mwe had had out there a few times before.' There was 'quite a bit of lightning.' 'Ray' Schnurbusch was at the south end of the terminal building at about 4:15 or 4:20 a.m. when he 'heard a bolt of lightning and it sounded like it struck something . . ..' It was 'real close.' When he looked outside, '. . . I seen a glow on the top of the hangar . . . so I ran out there.' He ran to Hangar No. 1. That hangar was the one normally used by Cape Central to maintain and work on aircraft. When Mr. Schnurbusch got to the hangar, there 'was a couple of pieces of wood that were laying on the ground that had been knocked out of the top of the hangar . . . and they were burning on the ground . . ..' The hangar was 'about 20 to 24 feet high and a couple hundred feet long . . ..' He saw a fire at the top of the hangar. He '(g) rabbed the hose and tried to put the fire out.' The hose was a '1/2 to 3/4 inch water hose'--a 'regular green garden hose used to wash airplanes and stuff with, and cars.' In a few seconds, however, the 'stuff started falling in from the top.' Ray Schnurbusch saw that he wasn't going to be able to control the fire, so he ran to call the fire department in the terminal building, but the phone was 'dead.' Ray than 'ran down to the FAA man (John Sarff) and asked him to call the Fire Department . . ..' He then went back to the hangar. By this time the fire had 'grown quite a bit' and 'the planes were burning and shortly after the planes started exploding.' The fire department received the call at about 4:35 a.m. Captain Calvin Lee Lynch proceeded to the airport with three units but had a difficult time getting there because the rain was so hard that '(w)e couldn't see where we were going.' When one of the fire trucks reached the airport, it got 'stuck' in the ditch. By then, the fire was raging beyond control, so the firemen created a 'water curtain' to save other buildings.

As a part of the plaintiffs' case, plaintiffs read portions of several depositions and answers to interrogatories. From this evidence it was brought out that there had been, prior to July 15, 1971, two previous fires, one in 1956 which destroyed the administration building, and one on July 15, 1966, which completely destroyed another wooden hangar, Hangar No. 3, which was '(p) robably caused by lightning.' After the 1966 fire, the matter of fire protection at the airport was discussed by various officials including Mr. Seesing, the airport board, the fire chief and the city manager. In 1970, for example, the Board discussed the lack of a fire truck at the airport. Fire Chief Carl Lewis, Mr. Seesing and perhaps others recognized the problem of fire protection at the airport, and the matter was discussed with the city manager by Chief Lewis and Mr. Seesing. As a result of these discussions, after the 1966 fire, a fire truck was purchased from Oak Ridge, which in the opinion of the Chief 'wasn't suited for our type of fire protection and it needed maintenance; it was in bad shape.' 'It looked like a dog to me.' It was not equipped to fight hangar fires and was not operable for the purpose of fighting a roof fire. Neither was the truck manned properly. When the truck was attempted to be started the day after the fire, it would not start. After the 1966 fire, in addition to the truck, two chemical wheeled fire extinguishers and at least two hand extinguishers were purchased for use at the airport. The chief and Mr. Seesing discussed the problem of adequate protection, but as explained by the city manager at the time of trial, a decision was made, because of economics, priorities and financing, not to construct a fire station manned on a 24-hour basis at the airport.

A bond issue had been sought in 1964, which included $50,000 for fire-fighting equipment, but it failed to pass.

During the trial, the former fire chief of the City, Carl Lewis, testified. He stated that he was chief at the time of the hangar fire. On July 15, 1971, he received the call concerning the fire at the airport. When he arrived at the hangar, it was 'all burned up.' When he arrived, three fire units were present, but one was in the ditch. When he arrived, it was 'too late; there was nothing left worth saving.' He stated that Hangar No. 1 had no sprinkler system, no usable fire hydrants, and no fire prevention materials. There were no lightning rods on the hangar; there were no fire retardant properties, and the hangar was '(t)inder dry.' In short, the chief indicated that, as a practical matter, the 'airport was pretty much without any kind of fire protection . . ..'

Mr. Seesing also testified at trial. He stated that he and Mr. John Godwin were the officers of Cape Central, that Cape Central was the fixed base operator at the airport and it leased certain buildings. The basic thrust of his testimony was that he was familiar with other fixed base operations and airports in 'this part of the country,' and he had visited many communities in Missouri and elsewhere where they have fixed base operations and had occasion...