Cutter Flying Service, Inc. v. Straughan Chevrolet Inc.

• Decision Date: 10 October 1969
• Docket Number: No. 8704,8704
• Citation: 459 P.2d 350,80 N.M. 646,1969 NMSC 132
• Parties: CUTTER FLYING SERVICE, INC., Plaintiff-Appellee, v. STRAUGHAN CHEVROLET, INC., Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 350

459 P.2d 350

80 N.M. 646

CUTTER FLYING SERVICE, INC., Plaintiff-Appellee, v. STRAUGHAN CHEVROLET, INC., Defendant-Appellant.

No. 8704.

Supreme Court of New Mexico.

Oct. 10, 1969.

[80 NM 646] McAtee, Marchiondo & Michael, Joseph D. Beaty, Albuquerque, for appellant.

Threet, Threet, Glass, King & Maxwell, Albuquerque, for appellee.

OPINION

PER CURIAM:

Upon rehearing, the opinion originally filed is withdrawn and the following substituted:

WATSON, Justice.

On May 18, 1965, Mr. A. Lee Straughan, then president of Straughan Chevrolet, Inc., defendant-appellant, left his company airplane with the Cutter Flying Service, Inc. for repair of the nose strut. Cutter, plaintiff-appellee, worked on the nose strut and also performed an inspection and furnished certain labor and parts which it alleged were included within what is called 'a one-hundred-hour inspection or an annual or periodic inspection.'

An annual inspection is required by the Federal Aviation Authority for all private planes and a 100-hour inspection is required for planes which carry passengers for hire. The certificate that the plane is airworthy is entitled in the log book of the aircraft only after the inspection and the necessary corrective action has been taken. Cutter's work was finished four to six days after Straughan's visit of May 18, and a statement was sent to appellant including all of the work and for some gasoline. No part of the statement having been paid, Cutter filed suit on the open account against appellant in the District Court of Bernalillo County on July 20, 1966.

At the trial, Cutter produced its service manager, Mr. Roach, and its sales manager, Mr. Draper, both of whom testified that Mr. Straughan, after ordering the repair of the nose strut, had told the service manager to go ahead and run an inspection on the airplane. Appellant's witness, Mr. Straughan, testified that he told Mr. Roach to see when the inspection was due, but not to do it without calling him first. Mr. Smokey Davis, a friend who accompanied Mr. Straughan, testified that Straughan told Roach to let him know before doing any work on the plane.

Judge Larrazolo found that Cutter could not recover for the repair of the nose strut because the work was not properly done but awarded judgment against appellant for $514.69 for the annual periodic inspection and minor work done in connection therewith and $15.25 for oil and gas for a total of $529.24. To this he added statutory interest 'and a reasonable attorneys' fee in the sum of 15% of $529.94 plus costs.'

Appellant objects to the award of the attorneys' fee and to the court's Finding No. 1, which reads:

'On May 18, 1965, A. Lee Straughan, president of Straughan Chevrolet, Inc., Vaughn, New Mexico, requested the plaintiff to repair the nose strut and to make an annual or periodic inspection of a Bonanza airplane which belonged to defendant, and to make necessary repairs in order that the plane could be certified as required by F.A.A. These repairs were to be charged to the defendant on an open account.'

It is appellant's contention that substantial evidence was not in the record to support that portion of the court's Finding No. 1, that Mr. Straughan had requested repairs, other than the nose strut, and that the request for an annual inspection alone would not include making the necessary repairs for the certification. Appellant contends that his request was equally consistent with two or more hypotheses or inferences.

Appellant states that even though it is found that Mr. Straughan requested the annual inspection, he could just as reasonably have made the request for the purpose of establishing in his own mind what work might be necessary in the future, or that no work would be necessary, and he would have the plane certified for another year, or that if any unreasonable amount of work would be necessary, he might make other plans. The request for an inspection does not necessarily include an authorization for labor and materials to have the plane certified as airworthy, according to the appellant.

The itemized statement shows '100 hour--Periodic $120.00,' followed by a description of the labor totaling $309.00 and a listing of 66 new parts installed for $180.40, plus 10 quarts of oil and the sales tax. Under appellant's theory it would only be liable for the $120.00 plus sales tax.

There is evidence, however, that when an inspection is ordered, this implies authorization to make the reasonably necessary repairs so that the certificate required by F.A.A. can be given. To Mr. Roach, the ordering of the inspection meant to make the repairs necessary 'so you could sign it off as airworthy' in the Aircraft Log Book. Mr. Cady, appellant's expert witness, who made out the next inspection certificate for appellant's plane, when asked: 'What is the customary practice, the customary procedure, followed in doing an annual inspection?' stated:

'If a customer came in and said, 'I want an annual inspection and perform whatever is necessary,' that would be the procedure, but, normally, prices are discussed. You give them the cost of the basic periodic inspection. You make the inspection. If items come up that are of consequence that are going to add to this man's bill tremendously, then, of course, you would call the man, notify him, talk it over with him, unless you for some reason knew that this man--cost was no object, you see.'

And, on redirect:

'Q Mr. Cady, you said that it would not be unusual for Cutter Flying Service to go ahead and certify an annual inspection if a one hundred hour inspection were requested in May, is that right--that was your testimony?

'A That is right, sir.'

We agree that no authority to make unreasonably expensive repairs could be inferred or implied from a request for an inspection. No evidence was submitted to show that the repairs made were such, nor was a finding requested to the effect that the repairs made were unreasonable or unnecessary for the purpose of certifying the plane as airworthy.

The trial court, by its unchallenged Finding No. 4, found that the charges for the minor work done in connection with said inspection were reasonable and justified. In addition, Mr. Straughan testified that he was a regular customer of Cutter's and that both repairs and inspections had been made for...