Haker v. Southwestern Ry. Co.

• Decision Date: 20 April 1978
• Docket Number: No. 13952,13952
• Citation: 35 St.Rep. 523,176 Mont. 364,578 P.2d 724
• Parties: Marlen A. HAKER et al., Plaintiff and Appellant, v. SOUTHWESTERN RAILWAY COMPANY et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 724

578 P.2d 724

176 Mont. 364

Marlen A. HAKER et al., Plaintiff and Appellant, v. SOUTHWESTERN RAILWAY COMPANY et al., Defendants and Respondents.

No. 13952.

Supreme Court of Montana.

Submitted Jan. 31, 1978.

Decided April 20, 1978.

Gene Huntley (argued), Baker, Keith D. Haker, Miles City, for plaintiff and appellant.

Dzivi, Conklin, Johnson & Nybo, William P. Conklin (argued), Smith, Emmons, Baillie & Walsh, James R. Walsh (argued), Great Falls, for defendants and respondents.

HASWELL, Chief Justice.

Plaintiff appeals from an order of the District Court, Tenth Judicial District, Judith Basin County, in his wrongful death and survivorship action denying his motion for partial summary judgment and granting several of the defendants' motions to dismiss for lack of personal jurisdiction.

Defendant Darrell A. Sawyer, a resident of the State of Arizona, is the principal stockholder and general manager of defendant Sawyer Aviation Company, an Arizona corporation. He also does business individually as Sawyer Aviation Company and as Sawyer School of Aviation.

Defendants Charles R. Newman and Dudley T. Newman are brothers and are both residents of the State of Arizona. They are officers and stockholders in defendant Southwestern Railway Company, an Arizona corporation. Additionally, the two brothers are engaged in a partnership and do business as Southwestern Railway Company.

Plaintiff Marlen A. Haker is the administrator of the estate of Lennie Dale Haker. Defendant Cecilia K. Bailey is the administratrix of the estate of Arthur Lee Myllymaki.

In August 1973, Charles Newman, doing business as Southwestern Railway Company, entered into a contract with Darrell Sawyer, doing business as Sawyer School of Aviation, for the purchase of a Cessna aircraft, Model 402, No. N69307. As part of their agreement, Sawyer was to provide Charles and his brother Dudley fifty hours of flight instruction. Art Myllymaki, an instructor-pilot employed by Sawyer Aviation, was assigned to give flight instructions to Dudley Newman.

During the weekend of September 29, 1973, Dudley and Myllymaki made a cross-country training flight to Tacoma, Washington, where Dudley was going to spend the weekend with relatives. Dudley and Charles had an understanding with Myllymaki that while Dudley was in Tacoma, Myllymaki could use the aircraft to fly to Stanford, Montana, to visit his relatives.

While in Stanford, Myllymaki took several of his friends including plaintiff's deceased, Lennie Dale Haker, on a "joyride" in the aircraft around the Stanford area. Myllymaki made two low sweeps over a bar in Utica, Montana, and then headed into the hills to the west where the plane crashed. There were no survivors.

On January 20, 1975, plaintiff filed a wrongful death and survivorship action against Southwestern Railway, Charles and Dudley Newman, Sawyer Aviation, Darrell Sawyer (collectively called the Arizona defendants), and the administratrix of Myllymaki's estate. He sought $750,000 in damages for the deceased's estate plus $50,000 for himself and the deceased's other heirs. Pursuant to Rule 4(d), M.R.App.Civ.P., personal service of process was made in the State of Arizona upon Southwestern Railway, the Newmans, Sawyer Aviation, and Sawyer.

On June 18, 1975, defendants Sawyer and Sawyer Aviation filed a "Notice of Special Appearance" challenging the Montana court's jurisdiction over their persons and moved to quash the service of process and to dismiss the action as to them on the grounds of lack of personal jurisdiction. On July 3, 1975, defendants Southwestern Railway and Charles and Dudley Newman also moved to dismiss the action on the same grounds.

A hearing on the motions to dismiss was held and discovery followed. Plaintiff then moved for partial summary judgment on these issues: (1) That Charles and Dudley Newman and Darrell Sawyer were liable for the negligence, if any, of Myllymaki in the airplane crash which killed plaintiff's decedent; and (2) that the Montana court had jurisdiction "to try the issues".

On June 7, 1977, the District Court entered an order which granted the motions of the Arizona defendants to dismiss the complaint as to them and which denied plaintiff's motion for partial summary judgment. From a judgment entered accordingly in favor of those defendants, plaintiff appealed.

Plaintiff raises the following issues on appeal:

1. Did the District Court err in refusing to grant plaintiff's motion for partial summary judgment?

2. Did the Montana District Court lack personal jurisdiction over the Arizona defendants?

As to the first issue plaintiff offers three theories under which he argues the Arizona defendants may be held liable. His primary reliance is upon Section 1-102(11) of the State Aeronautical Regulatory Act (codified at sections 1-101 to 1-503, R.C.M.1947). Alternatively, he contends that the Arizona defendants are also liable under the common law theories of respondeat superior and negligent entrustment.

Plaintiff argues that Section 1-102(11) imputes the negligence, if any, of an airplane pilot to the owners or lessors of the plane. In support of his position, he cites cases from other jurisdictions which have so construed a similar statute. Hoebee v. Howe (1953), 98 N.H. 168, 97 A.2d 223; Hays v. Morgan (5th Cir. 1955), 221 F.2d 481 (interpreting a Mississippi statute); Lamasters v. Snodgrass (1957), 248 Iowa 1377, 85 N.W.2d 622; Ross v. Apple (1968), 143 Ind.App. 357, 240 N.E.2d 825 (interpreting an Ohio statute); Heidemann v. Rohl (1972), 86 S.D. 250, 194 N.W.2d 164 (interpreting a Nebraska statute); and Allegheny Airlines, Inc. v. United States (7th Cir. 1974), 504 F.2d 104 (interpreting an Indiana statute). We hold, however, that neither the plain meaning of Section 1-102(11), nor the legislature's intent in enacting it, is to impute a pilot's negligence to the owner or lessor; consequently, we refuse to so construe it.

Plaintiff's interpretation of Section 1-102(11), would effect a change in the common law relationship between bailors and bailees. At common law the negligence of an airplane pilot alone, absent any independent negligence of the owner or any special relationship between owner and pilot, was not imputable to the owner. Nachsin v. De La Bretonne (1971), 17 Cal.App.3d 637, 95 Cal.Rptr. 227, 228. Under Section 1-102(11), plaintiff would have us hold the owner or lessor of an airplane absolutely liable for the negligence, if any, of the pilot of the plane.

In Montana, the common law, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or statutes of Montana, is the rule of decision. Section 12-103, R.C.M.1947. It does not control, however, where the law is declared by statute. But where the law is not so declared and where the common law is not in conflict with the statutes, it is the rule of decision. Section 12-104, R.C.M.1947.

We have previously developed rules for determining the extent of change that a statute makes upon the common law. Conley v. Conley (1932), 92 Mont. 425, 15 P.2d 922. In Conley we stated that a statute is not presumed to work any change in the rules of the common law beyond what is expressed in its provisions or fairly implied in them in order to give them full operation. " * * * For the written law to effect a repeal of (the common law), * * * the intent of the legislature to bring about the change must be clear; and, if the intent be not fairly evident, the common law remains the rule of decision." Conley, 92 Mont. 436, 15 P.2d 925.

In this regard, the intent of the legislature governs the interpretation of the statute. Matter of Estate of Baier (1977), Mont., 567 P.2d 943, 34 St.Rep. 860. Its intent must, if possible, be determined from the plain meaning of the words used. If the interpretation of the statute can be so determined, the courts may not go further and apply other means of interpretation. Softich v. Baker (1976), Mont., 556 P.2d 902, 33 St.Rep. 1111.

Section 1-102 is part of the State Aeronautical Regulatory Act and contains the definitions of certain words used in the Act. Subsection (11) of Section 1-102 defines the terms "operation of aircraft" and "operate aircraft". At the time of the accident involved here, it provided:

" 'Operation of aircraft' or 'operate aircraft' means the use of aircraft for the purpose of air navigation, and includes the navigation or piloting of aircraft. Any person who causes or authorizes the operation of aircraft, whether with or without the right of legal control (in the capacity of owner, lessee, or otherwise) of the aircraft, shall be deemed to be engaged in the operation of aircraft within the meaning of the statutes of this state." Section 1-102(11), R.C.M.1947 (amended 1974).

Plaintiff argues that because any person who causes or authorizes the operation of aircraft is deemed to be engaged in the operation of aircraft, the Arizona defendants must be deemed to have been operating the aircraft at the time of the fatal crash, and any negligence on the part of Myllymaki, the pilot, must be imputed to them. We do not so construe the legislature's intent.

The State Aeronautical Regulatory Act was passed by the 1945 Montana legislature, 1945 Mont.Laws, Ch. 152, §§ 1-25, and was patterned after the federal Civil Aeronautics Act of 1938, Ch. 601, Title I, 52 Stat. 977 (repealed 1958). The title to the Act indicates that among other things, the Act was to provide for the development and regulation of aeronautics in Montana and to create a State Aeronautics Commission which was to license, regulate and control aircraft and airmen. 1945 Mont.Laws, Ch. 152. One of the expressed policies of the Act was to further the public interest and aeronautical progress by providing for the protection and promotion of safety in aeronautics through cooperation in effecting a uniformity of the laws relating to the development and regulation of aeronautics...