Culver v. Sekulich

• Decision Date: 15 September 1959
• Docket Number: No. 2887,2887
• Citation: 344 P.2d 146,80 Wyo. 437
• Parties: Elizabeth Lucille CULVER, Executrix of the Estate of George L. Culver, Deceased, Appellant (Defendant below), v. Constance S. SEKULICH, Administratrix of the Estate of Stephen E. Sekulich, Deceased, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 146

344 P.2d 146

80 Wyo. 437

Elizabeth Lucille CULVER, Executrix of the Estate of George L. Culver, Deceased, Appellant (Defendant below), v. Constance S. SEKULICH, Administratrix of the Estate of Stephen E. Sekulich, Deceased, Appellee (Plaintiff below).

No. 2887.

Supreme Court of Wyoming.

Sept. 15, 1959.

Murane & Bostwick, Edward E. Murane, Casper, for appellant.

Greenwood, Ferrall & Bloomfield, Cheyenne, Rogers, Field, Gentry & Jackson, Clay C. Rogers, Kansas City, Mo., and Burbridge & Burbridge, Omaha, Neb., for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

On October 29, 1956, Stephen E. Sekulich was a passenger in a Beechcraft, twin engine, Bonanza airplane piloted by George L. Culver. That morning the two went from Newcastle, Wyoming (their place of residence), to Billings, Montana, and in the afternoon left for the trip home sometime near two o'clock. About 3:45 p. m. the plane crashed in a ranching area of Niobrara County, killing both men.

The present action was brought by Constance S. Sekulich, the widow of the passenger and administratrix of his estate, against Elizabeth Lucille Culver, the widow of the pilot and executrix of his estate, the petition alleging that the plane was under the exclusive control of Culver and was negligently caused to crash to the ground, killing Sekulich. The allegations of negligence were numerous and included the pilot's starting the flight from Billings when he knew or should have known that a snowstorm existed in his route which would make the trip extremely dangerous; his failure to use alternate available landing fields; his failure to maintain a safe altitude or to operate the plane in accordance with instrument flight rules; his operation of the aircraft at low altitudes in clouds and snow showers, particularly in the light of his defective vision; and the violation of various Civil Air Regulations. The answer, admitting the status of the parties, denied other alleged matters and set up two affirmative defenses: that the plane encountered weather elements which caused it to crash to the ground, such action of the elements being an act of God and not due to the negligence of the pilot; and that the pilot and passenger were on a joint venture so that the negligence of the pilot, if any, must be imputed to the passenger. ¹

On the trial of the cause before the court without a jury, a judgment was entered for plaintiff in the sum of $65,544.82. Defendant has appealed, urging error of the trial court in (1) permitting various experts to testify and give opinions based upon hypothetical questions which were not supported by any evidence in the record, (2) making findings of fact which were definitely and specifically based upon the opinions of the experts, which opinions were not supported by any evidence in the record, and (3) in issuing conclusions of law which being without foundation in the evidence and based upon improper findings of fact were erroneous and incorrect.

I The Hypothetical Questions

Counsel for defendant cite the case of Peterson v. McMicken, 72 Wyo. 444, 266 P.2d 238, for the principle that the scope and conduct of hypothetical examination is a matter of judicial discretion; and they cite Miracle v. Barker, 59 Wyo. 92, 136 P.2d 678, as holding that the ultimate weight to be given to the testimony of experts is to be determined by the jury (or court) and there is no rule which requires them to surrender their judgment or give controlling influence to the opinions of scientific witnesses. Thus, defendant proceeds upon the theory that the scope and conduct of examination by means of hypothetical questions in the trial of a cause is a matter within the discretion of the court; that a hypothetical question may be framed so as to put any theory which may be deduced from the evidence; and that a question may assume any facts within the limits of the evidence upon which an opinion of an expert may be desired and may omit any facts not deemed by the questioner to be material to his inquiry, provided always that the question is based upon evidence which has been presented to the court. Plaintiff agrees with this view and cites Johnson v. Hanover Fire Ins. Co., 59 Wyo. 120, 137 P.2d 615, and Phifer v. Baker, 34 Wyo. 415, 244 P. 637. The authorities of both litigants are within the rule stated in 2 Jones on Evidence, 5 ed., § 415:

'* * * the [hypothetical] question should be framed so that it fairly and clearly states the assumed facts which, according to the claim of interrogating counsel, have been proved, and for which there is some support in the evidence, and calls for an opinion of the witness which is based thereon.'

Defendant contends that 'in practically every hypothetical question there was an improper assumption of evidence and that the question was not based upon the evidence in the record.'

The principle upon which the first point in the appeal is to be resolved is then by mutual agreement entirely clear, i. e., those hypothetical questions which were grounded upon evidence were proper; those for which there was no evidentiary foundation were improper. ² Accordingly, we turn to defendant's criticisms of the hypothetical questions. She first complains of a hypothetical question preparatory to the requesting of the opinion of witness Nelson, Director of Aeronautics of the State of Wyoming:

'* * * on the afternoon of October the 29th, 1956 at approximately 3:00 o'clock in the afternoon or perhaps 3:10 or 3:15, that is the approximate time, the airplane in question was observed--was heard flying in the Lance Creek Valley going east and a little north near the Rumney residence and in approximately 15 minutes later it was seen going in--it was observed going in the opposite direction. Assume that near that time it was observed near the Spencer Ranch, which is approximately 3 miles from the Rumney Ranch and in the same valley and that at the Spencer Ranch it was observed twice. The first occasion it was going in one direction and on the next occasion it was going in the opposite direction and at the time it was observed at the Spencer Ranch it was approximately 2 yards above a bank, which is approximately 40 feet high. And assume that about one minute before the crash it was seen at the Rumney Ranch at a height of about 75 feet and traveling in the direction in which the crash occurred. And assuming that during that time, covering approximately 30 minutes before the crash when the airplane was heard and observed as stated, it was snowing heavily. * * *'

Defendant argues that there is no evidence to show that the plane which was seen by the various witnesses was the Culver plane.

Gladys Rumney said she saw a light colored plane which made a good deal more noise than her husband's one-motor plane go over about three-thirty and about fifteen minutes later she heard it again, walked to the door, and heard the plane hit the ground. Her son, Raymond Rumney, went to the wreck shortly thereafter; and his father, James E. Rumney, went there about seven o'clock that evening and helped to carry out the bodies of Culver and Sekulich. This evidence, uncontradicted, establishes without question that the plane which Mrs. Rumney last heard was the one piloted by Culver. It is not so clear that the plane observed some fifteen minutes or more before the crash was the same one. William Spencer said, 'Whether it was the same plane or not, it went over twice in the course of the afternoon,' and later said, 'it sounded like a two motor plane,' implying that the sound was the same in each instance. Sylvia Hammell was asked, 'On each and every time that you heard the plane, did you hear any difference in the working or sound of the motor?' and she answered, 'No.' Although this evidence was not specific, it was unrefuted, and we think it was substantial in the light of the improbability that two different twin-motor planes would be traveling over a ranching area at a low altitude during a snowstorm within such a short space of time.

Defendant contends that there was nothing in the record showing the height of the bank over which the plane flew immediately prior to the crash. The testimony does not say, as does the hypothetical question to Nelson, that the bank was forty feet high, at least in so many words. Josephine Spencer said she thought the bank was higher than her two-story house, the height of which she did not estimate. Defendant says the point is material because it tended to show the prudence or imprudence of the pilot's flying the plane at a height of forty feet above the ground. Even if this assumption is warranted, which we doubt, it is no more detrimental to defendant on this point than the unquestioned evidence of Sylvia Hammell who said that she saw the plane flying 'just barely above the tops of the trees' which she said were probably twenty-five to thirty feet high. Thus, the statement in the question of the height of the bank does not seem to have prejudiced defendant.

Defendant urges, and we think with merit, that there is nothing in the record to substantiate the statement that 'about one minute before the crash, it [the plane] was seen at the Rumney Ranch at a height of about 75 feet.' No witness testified to this effect. Gladys Rumney, the only person mentioning the height of the plane as seventy-five feet, said that she had seen it at that height some 600 feet away going east and a little north, that fifteen minutes later she heard a plane which sounded as if it were flying north and slightly to the west, and that immediately thereafter she heard the crash. Sylvia Hammell said she heard the plane, then saw it, and some ten to fifteen minutes later heard it immediately prior to learning of the crash. As above mentioned, she said the height of the plane was 'just barely above the tops of the trees.' The only other witness mentioning height was Bertha...