Franks v. Associated Air Center, Inc.

• Citation: 663 F.2d 583
• Decision Date: 11 December 1981
• Docket Number: No. 81-1187,81-1187
• Parties: John FRANKS, Plaintiff-Appellee, v. ASSOCIATED AIR CENTER, INC., Defendant-Appellant. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 583

663 F.2d 583

John FRANKS, Plaintiff-Appellee, v. ASSOCIATED AIR CENTER, INC., Defendant-Appellant.

No. 81-1187

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 11, 1981.

L. W. Anderson, M. Troy Murrell, Dallas, Tex., for defendant-appellant.

Burt Berry, Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before AINSWORTH, REAVLEY and RANDALL, Circuit Judges.

PER CURIAM:

This diversity case involves a suit by plaintiff John Franks against defendant Associated Air Center, Inc. ("Associated") for negligently damaging Franks' airplane while attempting to repair it. Franks also sued under Texas' Deceptive Practices-Consumer Protection Act, Texas Bus. & Com.Code Ann., § 17.41 et seq. (Vernon) alleging that Associated had charged him an unconscionable amount for its services. A jury found for Franks on both claims, and the trial judge denied Associated's motions for judgment notwithstanding the verdict and a new trial. Associated now appeals from the denial of its motions. We remand for a new trial on the issue of damages to be awarded Franks as a result of Associated's negligence and affirm the judgment in all other respects.

On October 15, 1976, a HFD 320 Hansa jet aircraft, owned by plaintiff John Franks, was flown from Shreveport, Louisiana to the repair facilities of Defendant Associated Air Center, Inc., in Dallas, Texas. The plane was flown by two employees of Franks: Leland D. Hester, a pilot and mechanic, and Jerry Lynch, the chief pilot. The plane was brought to Associated for repair of the landing gear and landing gear doors of the aircraft. The plaintiff's employees were alerted to the problem by the fact that a warning light in the cockpit indicated that the wheel door, which was supposed to close following retraction of the landing gear, would not completely close.

Hester and Lynch brought the plane to Associated to determine the reason why the door would not close. The most likely possibility was that the problem was either with the main landing gear wheels or with the doors that normally would close in sequence after the wheels were retracted while the plane was in the air.

In order to determine the cause of the malfunction, a retraction test was performed. The plane was placed upon jacks and a platform and lifted from the floor. Because the plane's motor was not running, an external source of hydraulic power was necessary. A device called a hydraulic mule was used to pump fluid through the plane's hydraulic system. The hydraulic mule is equipped with controls which allow it to vary the hydraulic pressure exerted. (The pressure is measured in pounds per square inch).

Present at the test were David Jewell, Donald Frank Lepek and three other Associated employees, along with Hester and Lynch, who were employed by the plaintiff Franks. Lynch sat in the cockpit and was instructed to raise and lower the landing gear while defendant's employees applied pressure to the plane's hydraulic system through the use of the hydraulic mule. The left and right main landing gears appeared to function normally but the doors still would not close properly. In order to diagnose the problem with the right main landing gear, the left main landing gear was pinned in the down position and the right landing gear was then moved to the beginning of the retraction and door closing cycle. The right main landing gear still would not retract completely after several recyclings. During the last recycling, there was a loud ripping noise. Considerable damage occurred to both landing gear systems of the aircraft, and substantial amounts of hydraulic fluid were sprayed about.

The aircraft was taken off the jacks and moved to a hangar for storage. The plane was subsequently moved to the repair facilities of Rockwell International. Rockwell repaired the plane at a cost of $4,416.40 in labor, and $7,026.07 in parts ordered from Hansa Jet Corporation. On top of this, Franks received a bill from Associated for $2,175.00 in labor charges.

Franks brought the present diversity action in the Northern District of Texas, alleging that Associated's employees had negligently applied too much pressure to the plane's hydraulic system, thus causing the damage to the aircraft. Franks also sued under the Texas Deceptive Trade Practices-Consumer Protection Act, Texas Bus. & Com.Code Ann., § 17.41 et seq. (Vernon), alleging that Associated's $2,175.00 charge for labor services was "unconscionable" under the meaning of the Act. Associated claimed in defense that the employees who performed the retraction test were borrowed employees of Franks, that the damage was caused not by their negligence but by a design defect in the landing gear, and that the labor charge included expenditures for storage, clean up, and inspection services and was not excessive. In response to special interrogatories the jury found (1) that Associated's employees were not borrowed employees of Franks, (2) that Associated's employees had been negligent in their performance of the retraction test, (3) that the negligence was the proximate cause of the failure of the landing gear while it was tested, (4) that the damages recoverable for negligence were $8,000, (5) that Associated's labor charge was unconscionable, and (6) that Franks was entitled to recover $2,005 of the labor charge. Associated moved for judgment notwithstanding the verdict and in the alternative, for a new trial on all issues. The trial judge denied both motions. Associated now appeals from the trial judge's decision.

Standards of Review

The trial judge's denial of the motion for judgment notwithstanding the verdict and his denial of the motion for a new trial are subject to different standards of review. This circuit's standard of review with respect to a motion for judgment notwithstanding the verdict was set out in detail in its en banc decision in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969):

On motion for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence-not just that evidence which supports the non-mover's case-but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Id. at 374-75. Accord, Fenner v. General Motors Corp., 657 F.2d 647 (5th Cir. 1981); Darien Bank v. Travellers Indemnity Co., 654 F.2d 1015 (5th Cir. 1981); Ellis v. Chevron U.S.A., Inc., 650 F.2d 94 (5th Cir. 1981); Gaspard v. Taylor Diving & Salvage Co., 649 F.2d 372 (5th Cir. 1981).

A motion for a new trial is justified only if the verdict is against the great weight of the evidence. However, the decision to grant or deny a motion for a new trial rests in the sound discretion of the trial judge and will only be set aside upon a showing of clear abuse. Conway v. Chemical Leaman Tanklines, Inc., 610 F.2d 360 (5th Cir. 1980); Taylor v. Fletcher Properties, Inc., 592 F.2d 244 (5th Cir. 1979); Spurlin v. General Motors Corp., 528 F.2d 612 (5th Cir. 1976); Cities Service Oil Co. v. Launey, 403 F.2d 537 (5th Cir. 1968); see also 6A Moore's Federal Practice P 59.08(5) (2d ed. 1976). Where the trial judge has denied the motion and left the decision of the jury undisturbed, this circuit has shown even greater deference to the trial judge's discretion. Evers v. Equifax, Inc., 650 F.2d 793 (5th Cir. 1981); Conway, supra; Valley View Cattle Co. v. Iowa Beef Processors, 548 F.2d 1219 (5th Cir.), cert. denied, 434 U.S. 855, 98 S.Ct. 174, 54 L.Ed.2d 126 (1977); Massey v. Gulf Oil Corp., 508 F.2d 92 (5th Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 67, 46 L.Ed.2d 57 (1975). With the proper standards of review in mind, we now consider whether the evidence in the record was sufficient to support the trial judge's actions.

The Borrowed Servant Issue

Associated's first claim is that the record does not support the jury's finding that the five Associated employees involved in the accident were not borrowed servants of Franks at the time of the accident. Producers Chemical Company v. McKay, 366 S.W.2d 220 (Tex.1963), states the basic doctrine in Texas:

Whether general employees of one employer have, in a given situation, become special or borrowed employees of another employer is often a difficult question, particularly when employees are furnished with machinery by their general employer to accomplish part of a project or contract undertaken by another. Solution of the question rests in rights of control of the manner in which the employees perform the services necessary to accomplishment of their ultimate obligation. If the general employees of one employer are placed under control of another employer in the manner of performing their services, they become his special or borrowed employees. If the employees remain under control of their general employer in the manner of performing...