Brunt v. Chicago Mill & Lumber Co., 42264

• Citation: 139 So.2d 380,243 Miss. 607
• Decision Date: 02 April 1962
• Docket Number: No. 42264,42264
• Court: United States State Supreme Court of Mississippi
• Parties: T. L. BRUNT v. CHICAGO MILL & LUMBER CO., and Blythe Huntley.

Page 380

139 So.2d 380

243 Miss. 607

T. L. BRUNT v. CHICAGO MILL & LUMBER CO., and Blythe Huntley.

No. 42264.

Supreme Court of Mississippi.

April 2, 1962.

Ross & Ross, Clarksdale, for appellant.

Brewer, Brewer & Luckett, Clarksdale, for appellees.

RODGERS, Justice.

This is a suit for property damages, alleged to have been caused by the negligent operation of an airplane. The suit commenced in the County Court of Coahoma County, Mississippi, where T. L. Brunt, the appellant herein, filed a bill of complaint on the equity side of the docket wherein he asked for an attachment against certain lands belonging to the defendant Chicago Mill and Lumber Company. The bill was later amended so as to bring in the pilot of the airplane, Blythe Huntley. The case was tried in the County Court without a jury and the County Court rendered a judgment in favor of the appellant in the sum of $1,600. The defendants then appealed from this judgment to the Chancery Court of Coahoma County, Mississippi, and the Chancery Court reversed the judgment of the County Court and rendered a judgment in favor of defendants. This appeal is taken by appellants from the judgment of the Chancery Court of Coahoma County, Mississippi. The only issue presented in this appeal is whether sufficient proof of negligence and causation was shown to sustain the Coahoma County Court's finding and award of $1,600 to the appellant, T. L. Brunt.

It appears from the record in this case that T. L. Brunt is a farmer in Coahoma County near Moon Lake and that as a part of his farming operations, Mr. Brunt maintains a cattle pasture on the main line or right of way of the Mississippi River levee near Moon Lake. Mr. Brunt has a contract or lease from the Yazoo-Mississippi Delta Board of Levee Commissioners in which Mr. Brunt was granted the right to construct and maintain needed fences and cattle gaps on the main line levee and to raise and pasture cattle on the levee and right of way and do such acts necessary to protect his interest therein.

It appears that the Chicago Mill and Lumber Company sometimes called Chicago Mill, owned timber interests on land adjacent to the levee right of way where Mr. Brunt maintained his pasture. There is no record showing that the Chicago Mill or Mr. Huntley had the right to land an aircraft anywhere on the main line levee or on the road that runs along the crest of the levee. Mr. Brunt's pasture occupied an area about a mile along the levee and it had fences on both sides so as to keep the cattle in the pasture. He grazed about 102 head of black angus cattle in this levee pasture.

Hal Moore, a forester for Chicago Mill and Lumber Company, was a passenger in an airplane owned and being operated by the defendant Huntley, on a timber inspection flight, on Thanksgiving Day in 1959. It appears that the forester observed a pickup truck near where a woods fire appeared to be burning and he directed the pilot to land so that he could get the tag number of the pickup truck. Mr. Huntley, the pilot, landed the plane in Mr. Brunt's pasture. He flew the full length of the pasture, flying in a southerly direction. Apparently the cattle were not disturbed by the landing of the plane but when the plane became airborne in the process of ascending from the pasture it flew over and near the cattle with the motor 'at full throttle' and the cattle stampeded.

Mr. Brunt and Mr. Huntley are experienced pilots. Mr. Brunt testified as an experienced pilot and an expert witness that the cattle would stampede from a low-flying airplane. There is no conflict in the testimony that the cattle did stampede, following the 'takeoff' of the plane, and fifteen head of cattle ran through and broke down a fence, going into an area rear the river. Eight of these cattle were lost and they were valued at $200 each, or the total sum of $1,600. The Coahoma County Court heard the testimony introduced in the trial in the County Court and allowed the plaintiff the sum of $1,600 damages for the loss of the cattle. On appeal to the Chancery Court, the court reviewed the evidence and reversed the judgment of the lower court. The Chancellor held that the plaintiff failed to meet the burden imposed by law and to show that the defendants were guilty of negligence. The judge in passing on the motion of the defendants for judgment pointed out that negligence had to be proven, that it was not presumed and the Chancellor was of the opinion that the complainant, T. L. Brunt, did not make the proof necessary to establish his case of negligence against the defendants.

The appellees argue that 'the defendant simply lawfully landed an airplane on a public levee. There was nothing negligent in that act, thereafter they simply flew away and so far as plaintiff knows and so testified, this was accomplished by a takeoff which could have been perfect'. Mr. Brunt testified that he did not see the plane when it took off until it was airborne and then he heard something and looked back and saw the cattle stampede. He then turned around and went back and found where the cattle had torn the fence down for a distance of about 50 to 100 yards and had gone through the fence. The witness also saw the tracks of the cattle at the place they went through the fence. On cross-examination Mr. Brunt testified that the cattle were not disturbed when the plane landed and in answer to the question 'why did it stampede them when it took off?' he answered, 'Well, you land without power and you takeoff with almost full power.' He was asked, 'Have you ever seen a plane frighten cattle?' and he said, 'Yes, sir,' and he was asked 'Where?' and he said, 'Several places'. He was asked the question, 'Would you say there was anything unusual about the takeoff? A. I couldn't say, it was airborne when I saw it after it took off, and I didn't see it land.' Mr. Brunt testified that he heard the airplane running and that 'it sounded like an ordinary airplane, not too much racket but enough to scare my cattle'. He testified that his cattle were on the slope and near the fence and that part of the herd was grazing approximately off the crest 20 yards; that his fence was in good condition 'best wire steel and creosote post', and that his cattle had never stampeded before. The pilot, Mr. Huntley, testified that he had never landed a plane there before, and that he did not see any cattle there, although he knew that cattle grazed on the levee, 'all around and up and down it'.

In the early case law on Aeronautics, it was generally recognized that where an aircraft descended on persons or property on the ground beneath, or where objects thrown from the aircraft caused damages, the owner or operator of the offending aircraft was held to the strictest accountability. See The Law of Aviation, 2d ed., by Hotchkiss, page 35. The strict accountability rule was based upon the reason that there was nothing the person on the ground could do to protect himself and property against the aircraft.

The Latin maxim, 'Cujus est solum, ejus est usque ad coelum et ad inferos', which has been translated into English as follows: 'To whomsoever the soil belongs, he owns also to the sky and to the depths,' was resorted to as an argument to hold liable an operator of an air vehicle upon the legal theory of trespass. Hinman v. Pacific Air Transport (Same v. United Air Lines Transport Corporation), 9 Cir., 84 F.2d 755. Cf. Rochester Gas & Electric Corp. v. Dunlop, 148 Misc. 849, 266 N.Y.S. 469. The earliest aircraft case in the United States applied the strict accountability rule upon the theory that the balloon was a dangerous instrumentality, comparable to a wild beast, fire, or explosives and the like. See Guille v. Swan, 19 Johns., N.Y., 381. The strict accountability rule was promulgated in the Uniform Law of Aeronautics, and adopted, in whole or in part, by twenty-one states of the United States, but most of these states have enacted laws that varied considerably from the provision of the original absolute liability concept. See The Law of Torts, Harper and James, Vol. 2, Sec. 4, p. 853.

Without unduly prolonging a discussion of the history of Aeronautics case law, we deem it sufficient to say it requires but little reflection to see that the application of ordinary rules of negligence to aviation fixes a greater degree of responsibility. The reason is obvious: the operation of an aircraft in a normal legal manner cannot be classified as negligence per se; nevertheless, the operation of an aircraft does call for a greater degree of care than the operation of an instrumentality which is incapable of inflicting serious injury.

The textwriter points out in 6 Am.Jur., Aviation, Sec. 76, p. 44, that negligence is the basis of the action for injury to persons and property by air vehicles in the following language: 'In an action for personal injuries received in an airplane accident, the plaintiff has the burden of proving that the operator or the aviator was negligent in the operation of the airplane and of showing that such negligence was the proximate cause of the injury complained of.' We are therefore of the opinion and so hold, that the ordinary rules of negligence are properly applicable to cases of damage to persons and property, caused by aircraft. See The Law of Torts, Harper and James, Vol. 2, Sec. 14:13, p. 845; 6 Am.Jur., Aviation, Sec. 60, p. 36.

The appellee argues that the pilot landed the airplane perfectly and 'took off', ascending perfectly. The question inferred is: Wherein was he negligent? The answer to that question must rest in the legal rules of ordinary negligence, together with statutes enacted with reference to aviation law.

Mississippi has adopted certain statutory regulations for the operation of aircraft, under the Code title Aeronautics, and among these laws we find Section 7536-12, as follows: 'It shall be unlawful for any person to operate an aircraft in the air or on the ground or water, while...