Hayden's Estate, In re

• Decision Date: 07 March 1953
• Docket Number: No. 38846,38846
• Citation: 174 Kan. 140,254 P.2d 813
• Parties: , 36 A.L.R.2d 1278 In re HAYDEN'S ESTATE HAYDEN v. BOYLE.
• Court: Kansas Supreme Court

Page 813

254 P.2d 813

174 Kan. 140, 36 A.L.R.2d 1278

In re HAYDEN'S ESTATE HAYDEN v. BOYLE.

No. 38846.

Supreme Court of Kansas.

March 7, 1953.

Rehearing Denied April 18, 1953.

Syllabus by the Court.

1. In ruling on a demurrer to evidence an appellate court must accept all evidence as true and give it the benefit of all favorable inferences to be reasonably drawn therefrom.

2. An order overruling a demurrer to the evidence should be disturbed only when, after reviewing the evidence in the light of the rule stated in the first paragraph of this syllabus, the appellate court is able to say the plaintiff has failed to make out some one or more of the material facts of his case.

3. In the absence of a statute covering the management and operation of an airplane at the time and place of an accident, specifically applicable to the issue of negligence in the operation thereof, the rules of law applicable to torts, i. e., the ordinary rules of negligence and due care, obtain.

4. An airplane is not a 'motor vehicle' within the meaning of that term as used in G.S.1949, 8-122b, commonly known as the guest statute, limiting the operator thereof to liability for injury to a guest to gross and wanton negligence.

5. The record examined in an action for wrongful death resulting from the crash of an airplane, equipped with dual controls, in which three persons having flying experience were riding and two of such persons had access to the dual controls, and held, that the demurrer to the plaintiff's evidence should have been sustained because such evidence failed to establish that the deceased owner thereof was operating the airplane at the time of a crash resulting in the death of all three of its occupants.

Thomas H. Taggart, of Goodland, argued the cause, and Terry Relihan, T. D. Relihan and A. W. Relihan, all of Smith Center, were with him on the briefs, for the appellant.

Max Jones, of Goodland, argued the cause, and Chas. G. Dockhorn, of Goodland, was with him on the briefs, for the appellee.

PARKER, Justice.

This is an appeal from a judgment rendered against the personal representative of a decedent's estate in an action brought by a widow on behalf of herself and four minor children for the wrongful death of her husband, resulting from the crash of an airplane.

Reference to the pleadings on which the case was tried in district court is necessary only because they define the issues on which the case was tried. For all purposes essential to appellate review it may be said:

The petition charges that on March 22, 1951, the plaintiff's husband, Wallace E. Boyle, was riding as a passenger in an airplane which was owned and being flown by Franklin B. Hayden in such a negligent manner it crashed and Boyle was killed; that the negligence of Hayden in the operation of the airplane consisted of flying the machine (a) contrary to the accepted rules of safety for flying, (b) at a low and dangerous altitude in disregard to his own safety and the safety of his passengers, and (c) so that it made turns, loops, stalls and dives at an extremely low altitude which could not have been made with safety and were made with disregard to the safety of himself and his passengers; and that acts of negligence on the part of Hayden were the direct and proximate cause of the crashing of the airplane and the death of plaintiff's husband.

Except for an admission Boyle met his death on the date charged the answer of William B. Hayden, as administrator of the estate of Franklin B. Hayden, who lost his life in the same airplane accident, denied each and all of the foregoing charges as set forth in the petition.

At this point it should perhaps be stated the record discloses a separate answer on the part of William B. Hayden as an individual, the allegations of which are of little consequence and have no bearing on the issues as joined and the case as tried in the district court. For that reason, although we note he joined in giving notice of an appeal from the judgment, we shall proceed with this opinion without further reference to him as an individual and as if he had made no appearance in the action.

With issues joined as above related and after the disposition of certain legal questions at a pretrial conference, which are of no importance at the moment, the cause came on for trial by a jury. Following the introduction of plaintiff's evidence the defendant demurred thereto and moved the court to dismiss the claim and disallow the same on grounds that the evidence introduced on behalf of the plaintiff was insufficient in law to establish a right to the allowance of her claim and affirmatively showed that she had no claim as against the administrator. This demurrer was overruled by the trial court on the ground it was of the opinion the record disclosed sufficient evidence to go to the jury. Thereafter the defendant adduced his evidence in defense of the claim and the plaintiff offered certain rebuttal testimony. Thereupon, after instructions on the applicable law, the cause was submitted to the jury which, in due time, returned its general verdict in favor of the plaintiff along with its answers to certain special questions submitted by the court at the time it retired to consider its verdict. Subsequently the defendant's motion to set aside the findings of the jury non obstante veredicto, to set aside certain findings, and for a new trial were each overruled. The trial court then approved the general verdict and rendered judgment accordingly. The appeal is from the judgment and from each and every ruling, order, and decision made or rendered by the trial court in the case adverse to the defendant during the pendency and trial of the action and subsequent thereto.

Appellant's specifications of error are numerous and quite lengthy. We will first consider and dispose of her claim the trial court erred in overruling the demurrer to the evidence. In doing so we shall give full application to the established rule (See numerous cases cited in West's Kansas Digest, Trial, k156, Appeal & Error, k866, 997; Hatcher's Kansas Digest [Rev.Ed.], Trial, §§ 147 to 151 Incl., Appeal & Error, § 488) that in the determination of such question all facts proved by her must be accepted as true and given the benefit of all favorable inferences to be reasonably drawn therefrom, also keep in mind the trial court's ruling on the demurrer should be sustained unless, after reviewing all her evidence in the light of the rule, we are required to say she has nevertheless failed to establish some one or more of the material facts of her case. Greep v. Bruns, 160 Kan. 48, 159 P.2d 803; Rowan v. Rosenthal, 113 Kan. 604, 215 P. 1008.

Except for testimony relating to the responsibility for the accident the factual picture disclosed by the evidence is not a subject of dispute between the parties and can be stated thus:

Just prior to noon on March 22, 1951, Franklin B. Hayden, Ray Callahan, and Wallace E. Boyle, all local residents, entered an airplane owned by Hayden and took off from the Goodland, Kansas, airport for an air flight, the purpose of which is not disclosed by the record.

The airplane was a 4-passenger Bellanca, the front seat holding two passengers and the rear seat equipped for two. It was also equipped with dual controls, permitting its operation by either of two persons who happened to be seated in the front seat and with a trim tab control, used in controlling the operation of the elevators which in turn control the up and down or ascent and descent operation of an airplane. This last control arrangement was located on the ceiling of the plane, in the middle between the two seats and a little behind the pilot, and was accessible to and could be operated by any persons seated therein. Although such airplane had dual controls and could be flown in the air by either pilot independently of the other it could not be taken off or landed by the pilot seated in the right front seat without help from the pilot seated in the left front seat because the plane was not equipped with a steerable tail wheel, which required use of the brakes on those maneuvers, and there were no brake pedals on the righthand side of the cockpit.

At the moment of the take-off Hayden, who had several hundred hours flying time, was seated in the left front seat of the airplane. Callahan, who was a truck driver with about a hundred hours flying time and had soloed, was seated in the right front seat. Boyle, who was a maintenance technician for the Civil Aeronautics Administration with a small amount of flight time and was not a licensed pilot, was sitting in the rear seat. None of the persons thus seated could have changed seats while the plane was in the air.

After taking off from the airport to the southwest in what appears to have been the normal take-off under existing conditions the airplane made a ninety-degree left turn and then proceeded in a southeasterly direction for an estimated ten minutes when it crashed to the ground, causing the death of all three of its occupants. There was but one eyewitness to the accident and he was too far away to identify or observe the activities of the persons involved in the tragedy. However, it may be said there is ample evidence of record to establish their positions in the plane at the moment of the crash were the same as they had been at the start of the flight.

The parties do not agree on, and have failed to furnish a record sufficient to enable us to determine, the exact distance between the place where the airplane took off and the scene of the crash. On that account all that can be said on such point is that the accident occurred at a point somewhere between three and three-fourths miles (as appellee contends) and four and one-half miles (as appellant insists) from the airport, some two and one-half miles south of the City of Goodland.

Early in this opinion we referred to certain legal questions, disposed of by the trial...