Graham v. Rockman

Decision Date26 December 1972
Docket NumberNo. 1597,1597
Citation504 P.2d 1351
PartiesJennings GRAHAM, Appellant, v. James ROCKMAN, Appellee.
CourtAlaska Supreme Court



This appeal is from a judgment awarded the owner of an airplane for damages caused as the result of a crash while it was being used by a rental pilot.

On August 28, 1969, Jennings Graham rented a Cessna 172 B Skyhawk aircraft from James Rockman, owner of Rockman's Flying Service. Rockman, a licensed pilot with an instructor's rating, used the airplane for rental to licensed pilots and for teaching students to fly. Graham had taken lessons from Rockman and had obtained his license a year previously. Accompanied by his young son and a friend, Graham flew to Humpback Lake for fishing. It was an ideal day for flying, sunny with no measurable wind.

On the return flight, goats were spotted on a nearby mountain rim of a 'horseshoe' shaped basin. Graham, flying at about 2,700 feet elevation, turned into the basin for the purpose of observing goats. He maintains on appeal that he was circumnavigating the rim of the basin, considered changing his path to fly straight ahead across the 2,500 foot left rim, but decided not to change his mind, and that 'on his way out, the plane suddenly fell from the sky.' The crash resulted in no serious injuries to the passengers, but the plane was totally destroyed.

Rockman brought suit seeking damages for the destruction of the plane and resultant loss of business. He contended that the crash was caused by Graham's negligence, and that as a bailee, Graham is liable for the resultant damages.

Graham alleged that the crash was caused by a sudden unpredictable downdraft or clear air turbulence which amounted to an 'Act of God or an independent intervening cause'. He maintained that either by express agreement or based on the custom in the business, Rockman had assumed the risk of the nonintentional destruction of the aircraft by renting it to Graham. Alternatively, Graham argued that as a permissive user of the aircraft, he is entitled to have the damage reduced by the proceeds of the hull insurance carried by Rockman.

The trial judge found for Rockman and awarded damages of $8,000 for loss of the aircraft and $250 for loss of profits, a total of $8,250.


It is not disputed that in the absence of other circumstances a bailee, such as Graham, is liable for injury to the bailed property attributable to his failure to exercise due care. 1

Regardless of the type of bailment and the degree of care required of the bailee, the trend of modern authorities is in support of the rule that in order to throw the duty of proceeding with actual proof of negligence upon a bailor who has made out a prima facie case by showing that the chattel involved was damaged or destroyed while in the possession of the bailee, the bailee must not only prove that the damage or loss occurred by reason of theft, fire or other cause beyond his control, but produce further evidence in explanation of the actual damage or loss which would indicate exercise of care on his part in the protection of the property. It is reasoned, and we think rightly so, that the bailee being in possession of the chattel is in a better position to explain the origin of the fire or the circumstances of the theft or other cause which would determine whether the loss or damage was due to negligence. He should disclose, to the extent that he is able, the manner in which the damage or loss occurred, the facts and circumstances attending such damage or loss and the precautions taken to prevent it. 2

The instant case was tried by the court without a jury. The primary issue was whether the crash was caused by pilot error or by an 'Act of God' consisting of a sudden downdraft or clear air turbulence. The court made findings to the effect that Graham did not maintain sufficient airspeed to keep the plane in the air as he turned to leave the basin, that he failed to 'use due care in flying the airplane into the basin looking for goats not having thought out his maneuvers to leave the basin and taking into account the hazards of clear air turbulence, downdrafts, the capability of the aircraft and other contingencies including his relative inexperience as a pilot,' and that there was 'no intervening cause of the crash, to wit: a downdraft or clear air turbulence.'

We have stated that:

One who contends that the evidence is insufficient to support a finding of the trial judge has the task of convincing this court that a definite mistake has been made-that the finding in question is clearly erroneous. 3

Moreover, an appellate court must take the view of the evidence most favorable to the prevailing party below. 4 When reviewed under those standards, we find that the trial court's findings of negligence on the part of Graham were not clearly erroneous.

The plaintiff's expert witness, Eichner, who was not subjected to cross examination, testified that the airplane stalled and consequently hit the ground. Even the defendant's expert witness, Aegerter, during cross examination at one point, stated that he was not sure whether a stall or downdraft caused the loss of altitude.

Moreover, there was no measurable wind on the day of the accident and the defendant had experienced no wind or turbulence just prior to the crash. The expert witnesses had indicated that 'clear air turbulence' usually occurs at relatively high altitudes such as 20,000 feet, while the crash took place at approximately 2,700 feet.

The trial court was entitled to draw on reasonable inferences from the testimony. 5 It could have concluded that Graham was negligent based upon the evidence that he was inexperienced as a pilot (he had but 65 1/2 hours flying time), that there are dangers in looking for goats while flying into a basin 200 feet from its rim, that Graham was unfamiliar with the terrain, and that he made a sudden decision to turn into the basin without adequate consideration for the load he was carrying and the low horsepower of his plane.

Reviewing the record in the light of the evidence most favorable to Rockman, we find that it was ample to support the trial court's findings of negligence.


Graham maintains that by virtue of the custom of the trade and by prior express conversations and dealings, Rockman assumed the risk of nonwillful destruction of the aircraft. The rule whereby a bailee bears the risk of injury to the bailed property resulting from his negligence can be modified by the contractual agreement between the parties 6 or by custom or usage. 7 The agreement by which Graham rented the airplane from Rockman was oral. The evidence as to the parties' understanding of that agreement is conflicting. Rockman stated that he told Graham to obtain his own insurance. Graham denied this and testified that his understanding of the agreement was that Rockman would bear the risk of loss of the aircraft. There thus was a conflict of evidence on the question of whether Rockman had agreed to assume the risk of loss of the aircraft.

Graham's answer expressly alleged that under terms and conditions of the rental of the aircraft to him, Rockman assumed all risks of damage to or loss of the airplane except for damage or loss intentionally caused. The court, however, made no specific findings on this issue. Included in the Conclusions of Law is the statement:

The defendant is liable for all injuries to plaintiff resulting proximately from the event of August 28, 1969, and which were foreseeable and has no defenses to such liability.

Despite this conclusion making reference to the absence of defenses, we are unable to determine whether the trial court specifically judged this issue, and if so, whether he considered that the defense failed due to a legal theory or inadequate proof of requisite facts.

Alaska Rule of Civil Procedure 52(a) specifies: 'In all actions tried upon the facts without a jury . . . the court shall find the facts specially . . ..'

In Merrill v. Merrill we stated:

As one well recognized authority points out, findings of fact under Rule 52(a) have a threefold purpose: 'as an aid in the trial judge's process of adjudication; for the purposes of res judicata and estoppel by judgment; and as an aid to the appellate court on review.' To particularize, the requirement that the trial judge file findings of fact gives assurance that he has exercised care in ascertaining the facts, and has employed both skill and judgment in reducing his thoughts on contested matters to precise and pertinent findings while the evidence is still fresh in his mind. Further, under Rule 52(a), it is the duty of the trial court by sufficiently detailed and explicit findings 'to give the appellate court a clear understanding of the basis of the trial court's decision, and to enable it to determine the ground on which the trial court reached its decision.' 8 (Footnotes omitted)

Since we are unable to determine the basis of the court's decision on the issue of an express contract dealing with the risk of loss of the airplane, it will be necessary to remand the case for further findings on this issue.

Graham also alleged that there was a custom in Southeast Alaska, among other places, regarding the rental of aircraft whereby the person owning the airplane assumed all risk of damage except for damage intentionally caused. Extensive testimony was presented as to the existence of such a custom and there was also some testimony to the contrary. 9 Rockman argues that such a custom could not be established in a relatively small community such as Ketchikan where there are but two aircraft rental businesses; particularly when the owner of one of the businesses (Rockman) contended that he did not follow...

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