Croce v. Bromley Corp.
| Decision Date | 14 August 1980 |
| Docket Number | No. 78-2627,78-2627 |
| Parties | 6 Fed. R. Evid. Serv. 1154 Ingrid CROCE, Administratrix of the Estate of James Joseph Croce, etc., et al., Plaintiffs, Linda Cortese et al., Plaintiffs-Appellees, v. BROMLEY CORPORATION, doing business as Roberts Airways and Mustang Aviation, Inc., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
L. W. Anderson, Robert C. Johnson, Dallas, Tex., for Mustang.
Royal H. Brin, Jr., Patrick F. McGowan, Dallas, Tex., for Bromley.
Thomas A. Demetrio, Chicago, Ill., Tom Davis, George M. Fleming, Austin, Tex., for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before AINSWORTH and GEE, Circuit Judges, and HUNTER, * District Judge.
On the evening of September 20, 1973, a Beech Model 18 Aircraft carrying singer Jim Croce and his entourage (the "Jim Croce Group" or the "group") crashed shortly after takeoff from the Natchitoches, Louisiana, airport. Among those killed was Croce's road manager, Kenneth Dominick Cortese, whose wife and son are the plaintiffs in this wrongful death action. 1
Initially, we recite only the most pertinent facts; other relevant ones are detailed in our discussion below of the numerous legal issues. On September 18, 1973, Bill Breedlove, the Director of Operations of Mustang Aviation, Inc. ("Mustang"), entered into an agreement with Lloyd St. Martin of Variety Artists International, Inc. ("Variety Artists"), a booking agency for popular singers, to provide an aircraft to fly the Jim Croce Group from Shawnee, Oklahoma, to Columbus, Mississippi, to Natchitoches, Louisiana, and then on to Dallas. Mr. St. Martin wired Mustang the agreed upon fee ($952.63). Later that day, Mr. Breedlove learned that the aircraft he had planned to use to transport the group was disabled. He thereupon contacted John Roberts, President of Bromley Corporation, d/b/a Roberts Airways ("Roberts Airways"), who agreed to provide a Roberts Airways plane and pilot to fly the charter for Mustang. 2 Whether the group or its booking agent was ever notified that Roberts Airways had been substituted for Mustang is disputed by the parties. In any event, the Roberts Airways plane, flown by Robert N. Elliott, followed the itinerary until its fatal crash on leaving Natchitoches airport on September 20. 3
The circumstances surrounding the airplane crash and the cause of the crash were hotly contested at trial. There was conflicting evidence as to whether the pilot's negligence for example, his failure to perform a full preflight check of the aircraft or his taking off downwind into a "black hole" or his having had a heart attack was the cause of the crash. Taking off at night, the plane was airborne only a short while before crashing. Everyone aboard the plane died instantly. Some marijuana and other controlled substances were found in the plane's debris, and a small amount of marijuana was found on the body of the plaintiffs' decedent.
Linda and Eric Cortese, decedent's wife and minor son, brought this wrongful death action against both Mustang and Roberts Airways. See n.1, supra. Three separate trials were held, each addressing a different question, and this appeal involves aspects of all three trials. At the first, bench trial, held in July 1976, the sole material issue was Mustang's liability for the actions of Roberts Airways. The trial judge rejected plaintiffs' theories of vicarious liability, respondeat superior, and joint venture but held Mustang liable on two alternative grounds: (1) Mustang was liable for the acts of its agent, Roberts Airways, and was estopped from denying that agency; and (2) Mustang was liable as the agent of an undisclosed principal (Roberts Airways). The court denied an interlocutory appeal. At the second trial, held in August 1977, a jury found that the pilot's failure to exercise the highest degree of care was a proximate cause of the airplane crash. In a separate order, the trial court held that "as a matter of law," the defendants were "common carriers who owed plaintiffs' decedent( ) the highest standard of care." Therefore, in accordance with the jury's verdict, the court held defendants Mustang and Roberts Airways jointly and severally liable for plaintiffs' damages. The third trial, on the issue of damages, resulted in a jury verdict for plaintiffs in the following amounts: $250,000 for care, maintenance, and support; $10,000 for household services; $20,000 for love, affection, counsel, and guidance; and $20,000 for sorrow, mental anguish, or grief suffered as a result of the decedent's death. 4
Both Roberts Airways and Mustang bring this appeal, alleging numerous errors in the second and third trials. With respect to the second trial, they challenge the district court's denial of their motions for a directed verdict, a judgment n. o. v., and a new trial; its holding as a matter of law that the defendants were carriers who owed the highest degree of care to plaintiffs' decedent; its admitting certain evidence with respect to the pilot's prior conduct; and its failure to appoint a guardian ad litem to protect the interests of decedent's minor son. From the third trial, defendants appeal the court's admitting certain testimony concerning the decedent's future earnings, its refusing to give an instruction that any damages awarded by the jury would not be subject to federal income tax, and its permitting the jury to award separate damages for mental anguish and loss of love and affection. In addition, Mustang appeals the district court's holding in the first trial that it is liable for the actions of Roberts Airways. We will initially discuss the issue of Mustang's liability, as determined in the first trial, and then proceed to consider the other issues seriatim.
The district court concluded as a matter of law that "Mustang is estopped to deny agency because Mustang led the Croce group to believe that Robert Elliott, the pilot, was Mustang's agent, flying Mustang's airplane," and that "(t)he Croce Group reasonably relied, to its detriment, on Mustang's implied promise that Mustang would fly the charter flight." Thus, it held Mustang liable for the actions of Roberts Airways and its pilot, Robert Elliott. Alternatively, the court found Mustang liable as "the agent of an undisclosed principal." 5 Mustang contends that it is not liable under either theory. We disagree. We hold that Mustang is liable for the actions of Roberts Airways and its pilot on estoppel grounds. 6
Mustang asserts that the district court erred in allocating the burden of proof on the estoppel theory. The following statement from the court's explanatory Memorandum and Order, issued after Mustang challenged its Findings of Fact and Conclusions of Law, provides the basis for Mustang's assertion: (emphasis added).
The remainder of the Memorandum and Order, however, makes clear that the district court properly placed the burden of proving estoppel on the plaintiffs and that he was persuaded by the evidence adduced at trial that plaintiffs had carried that burden. In the margin, we quote in full the relevant portion of the Memorandum and Order. 7 This language reveals that the allegedly erroneous statement to which Mustang points concerns merely an alternative estoppel theory, the breach of a duty to speak, 8 that was, in the court's words, "(w)holly apart from the direct evidence of nondisclosure, which in this court's view would directly meet the burden of proof argument . . . ." (emphasis added). The direct evidence was provided in large part by Richard Linden, a Mustang employee. Linden testified that he had contacted a member of the group on the road and left word that a substitute aircraft would be provided; 9 however, he also indicated that he was not likely to have informed the person that the substitute would be provided by Roberts Airways or that Mustang would no longer be responsible for the flight. The district court found, as a matter of fact, that
there is no credible evidence that Richard C. Linden informed the Croce agent that Roberts (Airways) was the owner and operator of the substitute or that Roberts (Airways) was solely responsible for the flight, nor did anyone secure the Croce Group's agreement to the change from the original contract. While the evidence on this point is sparse, the reasonable inferences from the evidence left the court with the firm belief that no such communication occurred.
In light of Linden's testimony, this finding is not clearly erroneous. Fed.R.Civ.P. 52(a). Nor is the finding that no one "in the Croce Group knew or should have known that Mustang was not responsible for the flight or that Roberts (Airways) was flying it in Mustang's place." Besides the direct evidence of nondisclosure provided by Linden, the district court relied on testimony given by the president of Roberts Airways that it was customary for Roberts Airways not to disclose to customers that they were substituting for Mustang. The inferences drawn by the trial court from this evidence are reasonable. 10 Because the factual findings detailed above fully support the district court's conclusion that the plaintiffs carried their burden of proof on the estoppel issue, we hold that Mustang is estopped from denying that Roberts Airways was its agent and is liable for the acts of that agent.
Denial of Defendants' Motions for a Directed Verdict,
Defendants claim that there was insufficient evidence of the pilot's negligence to support a jury verdict for plaintiffs in the second trial and that the district court therefore erred in denying their motions for a...
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