Coyner Crop Dusters v. Marsh

• Decision Date: 29 June 1962
• Docket Number: No. 6543,6543
• Citation: 91 Ariz. 371,372 P.2d 708
• Parties: COYNER CROP DUSTERS, an Arizona corporation, and Elizabeth S. Coyner, Executrix of the Estate of Jack D. Coyner, Deceased, Appellants, v. W. O. MARSH; C. A. Clements; Gene Autry; W. R. Bimson; E. Ray Cowden; G. C. Taylor; M. T. Clemans, Trustee for W. J. Clemans, III, and Charles Clemans; W. J. Clemans, Trustee for Mark Twain Clemans, Jr., Barbara R. Clemans, and Virginia L. Clemans; A. Boyd Clements; Cynthia Sue Clements Tubbs; John Doe and Jane Doe, individually and as copartners doing business as Marsh Aviation Co.; Carl Nicholson; Leonard Pemberton; Paradise Aviation Company, an Arizona corporation; John Roe and Jane Roe; and Fictitious Corporation, Appellees.
• Court: Arizona Supreme Court

Page 708

372 P.2d 708

91 Ariz. 371

COYNER CROP DUSTERS, an Arizona corporation, and Elizabeth S. Coyner, Executrix of the Estate of Jack D. Coyner, Deceased, Appellants, v. W. O. MARSH; C. A. Clements; Gene Autry; W. R. Bimson; E. Ray Cowden; G. C. Taylor; M. T. Clemans, Trustee for W. J. Clemans, III, and Charles Clemans; W. J. Clemans, Trustee for Mark Twain Clemans, Jr., Barbara R. Clemans, and Virginia L. Clemans; A. Boyd Clements; Cynthia Sue Clements Tubbs; John Doe and Jane Doe, individually and as copartners doing business as Marsh Aviation Co.; Carl Nicholson; Leonard Pemberton; Paradise Aviation Company, an Arizona corporation; John Roe and Jane Roe; and Fictitious Corporation, Appellees.

No. 6543.

Supreme Court of Arizona, In Banc.

June 29, 1962.

Motion for Further Rehearing Denied Sept. 18, 1962.

Z. Simpson Cox, L. J. Cox. Jr., Marion R. Smoker, Ira I. Schneier, Phoenix, for appellants.

Snell & Wilmer, Phoenix, for appellee Marsh.

Lewis, Roca, Scoville, Beauchamp & Linton, Phoenix, for appellees Paradise Aviation Co. and Leonard Pemberton.

BERNSTEIN, Chief Justice.

This is a consolidated action in which Elizabeth Coyner, as executrix of the estate of J. D. Coyner seeks recovery for the wrongful death of the decedent, and Coyner Crop Dusters, a corporation, seeks recovery for the destruction of an airplane. Briefly stated, the facts are these: Paradise Airport, an airport situated northwest of Phoenix, Arizona, at the time of the accident was composed of a number of intersecting graded runways used for light aircraft traffic in flight instruction and private flying. Along the extreme western portion of the field a landing strip had been graded for the exclusive use of crop duster pilots, and the various dusting companies using this runway had stacked their insecticide supplies near the northern terminus of this strip. On July 14, 1952, one Nicholson, a duster pilot new in the Phoenix area, flew a plane belonging to the defendant Marsh to the Paradise airport and inquired of the defendant Pemberton, the manager of the field, as to methods of operation on the duster strip. Pemberton told Nicholson that landings and take offs on the duster strip were from north to south or were 'generally' from north to south. Nicholson then began his assigned dusting work, and had completed one flight prior to the accident. Both times while Nicholson was loading, Underwood, an employee of Coyner, landed from south to north on the duster strip, and loaded from a pile of insecticide adjacent to Nicholson's loading activity. Nicholson testified that he landed from north to south, but two of the plaintiff's witnesses testified that they observed Nicholson land from south to north himself. Nicholson also testified that he did not observe Underwood's landings. Before Nicholson completed loading the second time Underwood took off to the south again stirring up a cloud of dust which covered approximately 1000-1300 feet of the crop duster strip. Nicholson waited until the dust had settled enough that he could see to a point where he thought he would become airborne and then commenced his take off run to the south. Before his plane became airborne, Nicholson collided with the aircraft piloted by the decedent Coyner, who had landed on the south end of the crop duster strip and was taxiing toward the insecticide stacks. Coyner received burns in the fire that followed the collision and both aircraft were destroyed. Coyner died four days after the accident from injuries received therein.

In the trial below, judgment was entered upon a jury verdict in favor of the defendants, and plaintiff brought an appeal, raising numerous assignments of error. This court affirmed the judgment of the lower court, the present writer dissenting, 90 Ariz. 157, 367 P.2d 208 (1962). By timely motion, appellants sought a rehearing which was granted.

Since the original opinion in this case, this court has handed down its decision in Layton v. Rocha, 90 Ariz. 369, 368 P.2d 444 (1962). We there held that the trial court is deprived of the power to instruct the jury as to what its verdict must be, as far as the defense of contributory negligence is concerned, under the provision of our constitution which states:

'The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.' Ariz.Const. Art. 18, § 5, A.R.S.

We have also held that the court may not instruct the jury that if it finds certain facts in issue to be true, it must find the plaintiff guilty of contributory negligence, Wolfswinkel v. Southern Pacific Co., 81 Ariz. 302, 305 P.2d 447 (1956), affirmed on rehearing 82 Ariz. 33, 307 P.2d 1040 (1957).

In the present case the following instructions were given over the objection of the plaintiff:

'You are instructed that if you find from the evidence that Mr. Coyner failed to exercise due care in ascertaining whether he could safely land and taxi his plane before he attempted to do so, and that such failure proximately contributed to the collision in the slightest degree, then it is your sworn duty to return a verdict for the defendants.' (Defendants' Instruction No. 4)

'You are instructed that a person has a duty to exercise reasonable and ordinary care for his own safety. If you find from the evidence that Mr. Coyner negligently placed himself in a position of peril by landing or taxiing onto the runway in question when that runway was obstructed by dust, if you find it was obstructed by dust, and that the negligence, if any, contributed in the slightest degree to the collision and his death, then you are instructed to find in favor of the defendants.' (Defendants' Instruction No. 5)

These instructions, and Defendants' Instruction No. 25, to be discussed hereafter clearly violate the rule established by the case of Layton v. Rocha, supra.

In the original opinion in this case, the court refused to consider the alleged errors contained in these instructions because in its opinion the plaintiffs did not direct the trial court's attention to the errors specified by stating distinctly the matter to which they objected and the grounds for their objection as required by 16 A.R.S. R.Civ.P. 51(a). ¹ In the motion for rehearing, the plaintiffs pointed out that the counsel and court spent 23 hours settling instructions, much of this time without the presence of the court reporter, and directed our attention to the trial court's order denying motion for a new trial wherein that court stated:

'* * * The one assignment which causes the court the most concern is the one with reference to the instruction on contributory negligence. * * *

'Early in the trial, at least at a time prior to the beginning of the settling of the instructions, the court requested that all counsel familiarize themselves with the principles of the Southern Pacific v. Bolen [76 Ariz. 317, 264 P.2d 401] case which is cited by the Supreme Court in both of the Wolfswinkel opinions. The practical application of the principles in the Bolen case was the basis of the largest area of disagreement in the settlement of instructions.'

It is quite understandable that this court would overlook such a buried indication of compliance with Rule 51(a) since the plaintiffs chose to shotgun every conceivable ground of error with some 75 sub-assignments of error. Such a practice makes it very difficult to separate the grain from the chaff. Nevertheless, in fundamental fairness, we must now recognize that the requirement of Rule 51(a) was satisfied by giving 'the trial judge the benefit of counsel's best urging * * *', Michie v. Calhoun, 85 Ariz. 270, 336 P.2d 370 (1959).

While the errors in the instructions quoted above are sufficient to require a retrial, we will consider other assignments of error for the benefit of the trial court at the new trial. Several of the matters discussed hereafter would not, standing alone, be prejudicial error, nevertheless their cumulative effect was to confuse the jury and deprive the plaintiff of a fair trial.

The plaintiffs have complained that many of the instructions given, including those considered heretofore, direct that the jury find for the defendants if certain facts are found without requiring a finding of every element necessary to such a direction.

The use of formula instructions which bind or direct the jury to find in favor of one party if it believes certain evidence or finds certain facts is fraught with danger. Such instructions must be made conditional upon the jury finding all the necessary facts which would result in a decision in favor of one party or the other, Pickwick States Corp. v. Messinger, 44 Ariz. 174, 36 P.2d 168 (1934); Sisk v. Ball, Ariz., 371 P.2d 594 (1962). ² If an essential fact is omitted, the instruction standing alone is erroneous, Taylor v. Fitzpatrick, 235 Ind. 238, 132 N.E.2d 919 (1956). Whether such error is prejudicial depends on a review of the instructions as a whole. We have often stated that instructions must be considered as a whole, Musgrave v. Githens, 80 Ariz. 188, 294 P.2d 674 (1956), and that if an instruction is incomplete, it is not reversible error if the proper qualifications are given in some other portion of the instructions, Humphrey v. Atchison, T. & S. F. Ry. Co., 50 Ariz. 167, 70 P.2d 319 (1937). The test is whether the jury would be misled as to the proper rule of law, Jost v. Ross, 82 Ariz. 245, 311 P.2d 840 (1957). Where an instruction directs a verdict in favor of one party if certain facts are found, and omits an element necessary to that party's recovery, the jury would certainly be mislead unless another instruction fully explained the missing element and applied its qualifying effect to the deficient binding instruction.

In this case the following instruction was given:

'If you should find from the evidence that there were rules and regulations at Paradise Airport and that the...