Clemson v. Butler Aviation-Friendship, Inc.

• Decision Date: 09 November 1972
• Docket Number: INC,No. 46,AVIATION-FRIENDSHI,46
• Citation: 266 Md. 666,296 A.2d 419
• Parties: John CLEMSON t/a Clemson Air Charter, etc. v. BUTLER
• Court: Maryland Court of Appeals

Page 666

266 Md. 666

296 A.2d 419

John CLEMSON t/a Clemson Air Charter, etc. v. BUTLER AVIATION-FRIENDSHIP, INC.

No. 46.

Court of Appeals of Maryland.

Nov. 9, 1972.

Ernest C. Trimble, Towson (Whiteford, Taylor, Preston, Trimble & Johnston, Towson, on the brief), for appellant.

Browne L. Kooken, Baltimore, for appellee.

Argued before MURPHY, C. J., and McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

SMITH, Judge.

This litigation apparently was provoked by an attempt to use an airplane at Friendship International Airport for a suicide. We shall here sustain the decision of a trial judge (Maguire, J.) who concluded that a bailee had exercised ordinary care and diligence in safeguarding property delivered to it for repairs.

Appellee, Butler Aviation-Friendship, Inc. (Butler), carried on a business at Friendship International Airport (Friendship) related to the hangar storage of aircraft, refueling of aircraft, parking of aircraft, 'general assistance to the corporate aircraft, pilots and passengers,' and maintenance of aircraft.

In October, 1967, Dr. John Clemson (Clemson), the appellant who operates under the name of 'Clemson Air Charter,' entrusted an airplane to Butler for certain repairs. The plane was parked and tied down in an area known as the north ramp approximately 200 yards from Butler's hangar and repair shop. This area is approximately 275 yards from a fence and gate separating the public highway leading into Friendship from the property leased by Butler from Friendship. While in the parked position it had chocks under its wheels, each wing securely tied by a rope to the mooring cable on the pavement, locked tail wheel which could only be unlocked by a knowledgeable person entering the cockpit and pulling the switch which released the tail lock, and a 'control lock' which restricts the movement of the control surfaces and virtually prevents anyone from sitting in the pilot seat until the control lock is removed.

Between October 20, 1967, when repairs were requested by Clemson, and October 23, 1967, Clemson's plane was moved to a point immediately outside of Butler's hangar, located about 200 feet from the fence and main gate leading up to the public highway. At that time the tie down ropes were removed and the control locks and tail lock were unlocked. The plane was placed in a position approximately 25 feet outside of the door regularly used by Butler's employees to enter and leave the electronic shop and hangar. The plane was parked facing away from the hangar with the door for entry into the aircraft being located on the west side of the airplane and, therefore, where all employees of Butler had to pass the door for access to Clemson's plane in the performance of their regular duties. Chocks were placed under the wheels, but the plane was not otherwise secured. In its new position it could be readily seen by all of the public traveling on the highway leading to and from Friendship.

On the afternoon of October 24 an employee of Butler entered the aircraft and found a man 'sitting on one seat kind of sprawled into the next seat.' He was described as having 'dried blood around both undersides of the wrists and neck,' the blood being on each wrist and '(i)n a circular manner about 160 degrees' about his neck. It was reported that 'no red or flying blood' was seen. The person found indicated that he had tried to do away with himself.

Clemson placed into evidence a statement from an airplane pilot named Joseph Toskas (Toskas) who walked by Clemson's plane. He said that he used to fly this plane and he knew that it was owned by Clemson. Toskas stated that he saw '(t)he left propeller was going up to compression. The lights were down and on.' He pointed to his eyes, a sign to the pilot that the lights were on. The individual was unsuccessful in starting the plane. He 'fumbled around for 15 to 20 seconds to turn the lights off.' There were chocks under the wheels at the time. Toskas returned in about 20 minutes. He then saw an ambulance taking away the individual he had observed attempting to start the plane.

It developed that extensive damage had been done to the plane. The instrument panel had been smashed and apparently pieces of glass were used by the man in a suicide attempt. Amost all of the switches had been turned on and an attempt had been made to move and work and of the controls as well as an attempt to start the engines.

Butler sued Clemson for the cost of repairs. Because of certain procedural difficulties, not here relevant, a separate suit was filed by Clemson 'to his own use and to the use of Lloyds of London' for damages in the nature of loss of income sustained by Clemson because of the damage to this plane while 'in the care and custody of Butler for repairs' and also because of the delay by Butler in making repairs. The cases were consolidated for trial. Judgment in each suit was entered in favor of Butler. Although an appeal was entered in both suits, Clemson here presents but two questions, (1) whether Butler 'exercise(d) ordinary care and diligence in safeguarding the property of Clemson to the end that the loss to Clemson might have been avoided,' and (2) whether Butler 'ma(d)e the necessary repairs to (Clemson's) aircraft in a timely manner, (Butler) having had the aircraft in its possession for repair from October 24, 1967 to February 1, 1968.'

One thing upon which the parties can agree is that this case involves a bailment for hire or mutual benefit and that the applicable law as to the liability of the bailee was summed up for the Court by Judge Hammond in Fox Chevrolet Sales v. Middleton, 203 Md. 158, 99 A.2d 731 (1953):

'(W)here . . . a demand and an unexplained refusal to deliver (bailed property) are proven a prima facie case of negligence is made out; yet, when the loss or injury is accounted for as having been occasioned by a cause which would excuse the bailee, such as a burglary of his premises, then the defense is complete, unless the bailor follows by showing that the bailee, by the exercise of ordinary care and diligence might have avoided the loss or injury. The burden of proving negligence never shifts from the plaintiff. He must prove the delivery, the bailment and the failure to return; thereupon, it is incumbent upon the bailee to explain that failure. If he does so, the bailor must prove that the bailee failed to use ordinary care and diligence to safeguard such property and that his failure to perform that duty caused the loss.' (Citing cases.) Id. at 161, 99 A.2d at 732-733.

In Fox the Court was concerned with the sufficiency of the evidence to submit the question of the negligence of the bailee to the jury. The building there was located in an industrial area of Baltimore. At night the rear of the premises was removed from the sight of passersby on Hanover Street which 'would afford prowlers and burglars an excellent opportunity to perform their missions in comparative leisure and safety because of its isolation.' A rear door leading to the area where the car in question was located was secured by a padlock attached to a hasp nailed to the exterior of the door. Inside there was another door similarly locked. Both locks were broken on the night of the theft. A night watchman was employed, but did not always appear. He failed to appear on the night in question. He was employed after there had been acts of vandalism. This Court held that reasonable men could well find, as the jury did, that the bailee had failed to live up to the duty...