Clark v. Chrishop, 7819

• Decision Date: 13 February 1952
• Docket Number: No. 7819,7819
• Parties: CLARK et al. v. CHRISHOP.
• Court: Idaho Supreme Court

Page 171

241 P.2d 171

72 Idaho 340

CLARK et al. v. CHRISHOP.

No. 7819.

Supreme Court of Idaho.

Feb. 13, 1952.

Zener & Peterson, Pocatello, for appellant.

Gee & Hargraves, Pocatello, for respondents.

PORTER, Justice.

This is an action by the heirs at law of Marion Clark, deceased, to recover damages for his alleged wrongful death in an airplane accident occurring in the vicinity of Soda Springs on July 14, 1948. The trial of the cause resulted in verdict and judgment for respondents in the sum of $6,300. Motions by appellant for judgment notwithstanding the verdict and for new trial were denied by the court. From the orders denying such motions and from the judgment, appellant appeals to this court.

Appellant, at the time in question, was the owner and operator of the Chrishop Flying Service located at Grace, Idaho, with a branch of such flying service at Soda Springs, and was in the business of teaching and instructing persons to fly.

On March 8, 1948, deceased enrolled as a student with the Chrishop Flying Service at Soda Springs, and thereafter pursued a course of flight instruction, under what is commonly referred to as the 'G. I. Bill'. The authorization of the Veterans Administration for such training provided for a course of instruction beginning on March 8 and ending on July 5, 1948. However, on the day of the accident, deceased had not yet received the required hours of instruction in cross-country flight to qualify him to be licensed by the Civil Aeronautics Administration as a private pilot permitted to carry passengers in an aircraft. He had a student pilot's certificate and was qualified to fly solo.

On July 14, 1948, about the hour of one o'clock P.M. deceased went to the airfield of appellant at Soda Springs, filled with gas a certain red, dual controlled, Cub 'Cruiser' training plane owned and operated by appellant, and took off on a flight in such plane with one Leon H. Riggs as a passenger. Riggs was a former student of the flying school and held a private pilot's license. Neither appellant nor any of his employees were present at the flying field to 'check out' the deceased or to supervise the take-off.

Several witnesses saw the airplane flying at an unusually low and dangerous altitude. The witness, Clyde Anderson, is a graduate of the Chrishop Flying Service and holds a private pilot's license. He had recently flown and was familiar with the airplane in question. He testified that on the day of the accident, just after his dinner, he was working in the field with a tractor; and that the airplane flew past him three different times at an elevation of about ten feet above the ground. Shortly thereafter, the airplane crashed to the earth in an open field about five miles from Soda Springs. No one witnessed the accident. Both occupants of the plane were killed.

By his assignments of error, appellant challenges certain rulings by the court, a number of instructions given and the refusal to give requested instructions. However, appellant's contention that the evidence fails to show any negligence on the part of appellant which was the proximate cause of the accident and death of Marion Clark, we consider to be decisive of the case and will limit our discussion to such contention.

The burden was on respondents to plead and prove not only negligence on the part of appellant but that such negligence was the proximate cause of the accident. There must be some causal connection between the negligence of appellant and the injury to deceased in order to render appellant liable. In Chatterton v. Pocatello Post, 70 Idaho 480, at page 484, 223 P.2d 389, at page 391, 20 A.L.R.2d 783, we said:

'The breach of duty to be actionable must be the proximate cause of the injury complained of, that is, the cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the result, and without which the result would not have occurred. 65 C.J.S., Negligence, § 103, p. 645.

'It may be stated as a general rule that negligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion the agency by which the injuries are inflicted is not the proximate cause thereof. 38 Am.Jur. 702.'

The rule is stated in 65 C.J.S., Negligence, § 104, p. 650, as follows: 'Although a person may be negligent in the performance or omission of some duty owed to the person injured, no liability attaches unless it appears that there was a causal connection between...