Heidemann v. Rohl, 10951

• Court: Supreme Court of South Dakota
• Writing for the Court: HANSON; WOLLMAN; WOLLMAN
• Citation: 86 S.D. 250,194 N.W.2d 164
• Parties: Otto HEIDEMANN, Special Administrator of the Estate of Linda Heidemann, Deceased, Plaintiff and Appellant, v. Jerry L. ROHL, d/b/a Business Flying Service, Defendant and Respondent.
• Docket Number: No. 10951,10951
• Decision Date: 28 January 1972

Page 164

194 N.W.2d 164

86 S.D. 250

Otto HEIDEMANN, Special Administrator of the Estate of Linda

Heidemann, Deceased, Plaintiff and Appellant, v. Jerry L. ROHL, d/b/a Business Flying Service, Defendant and Respondent.

No. 10951.

Supreme Court of South Dakota.

Jan. 28, 1972.

Bangs, McCullen, Butler, Foye & Simmons, Ronald Clabaugh, Rapid City, for plaintiff and appellant.

Braithwaite, Cadwell & Braithwaite, Gale B. Braithwaite, Sioux Falls, for defendant and respondent.

HANSON, Presiding Judge.

This is an action for the wrongful death of Linda Heidemann who lost her life when the light airplane in which she was riding crashed near Anselmo, Nebraska on January 11, 1969. She was a member of the Augustana College debate team returning to Sioux Falls from a debate tournament in Colorado Springs, Colorado. The accident resulted in the deaths of all four students, Don Tibbets, the debate coach, and Frayne Anderson, the pilot, who was also a librarian at Augustana College.

The defendant, Jerry Bohl, owned and operated the Business Flying Service at the Sioux Falls Airport which consisted of aircraft rental, instruction, and charter. He owned a Piper Cherokee VI which was a six-passenger single engine aircraft. On January 9, 1969 Anderson rented the Cherokee from defendant either for himself or on behalf of Augustana College and departed on a flight from Sioux Falls, South Dakota to Colorado Springs, Colorado. His passengers were four members of the Augustana debate team and its coach. The purpose of the trip was to attend an official college debate tournament after which the debate team would be flown back to Sioux Falls by Anderson in the leased plane.

Anderson had a private pilot's license authorizing him to fly under Visual Flight Rules (VFR) established by the Federal Aviation Administration (FAA). VFR conditions exist when a pilot can fly by visual reference to something outside the plane such as the horizon and landmarks. Anderson was not instrument rated, which means he was not authorized to fly when Instrument Flight Rules (IFR) apply. IFR conditions exist when a pilot has no visual references outside the aircraft and must navigate solely by instruments.

Anderson departed from Colorado Springs, Colorado on January 11, 1969 with the Augustana debate team and coach on board as passengers. He filed a VFR flight plan from Colorado Springs to Sioux Falls, South Dakota. During the flight Anderson contacted the North Platte, Nebraska FAA Flight Service Station and identified his position as two miles south of the station at an altitude of 7500 feet on top of an overcast of clouds. He was advised by the Flight Service Station the weather was below minimum VFR conditions from North Platte to O'Neill, Nebraska and it was impossible to get below the overcast. Anderson replied to the Flight Service Officer in a rather jovial manner, 'I guess I will get some instrument practice.' No further contact was had with the aircraft. The wreckage of the plane was not discovered until March 25, 1969 near Anselmo, Nebraska. The accident report of the National Safety Board listed the probable cause of the accident as continued VFR flight into adverse weather conditions and spatial disorientation.

The plaintiff, as Special Administrator of the Estate of Linda Heidemann, seeks damages in the amount of $75,000 against defendant in a complaint containing two separate causes of action. Count I alleges in substance, defendant Rohl authorized Frayne Anderson to operate the leased aircraft in which plaintiff's decedent was a passenger and Anderson negligently operated the airplane in airspace over the state of Nebraska, which negligence proximately resulted in the death of decedent. Count II alleges defendant negligently leased an aircraft knowing it was defective and not reasonably fit for such flight, which negligence proximately resulted in the airplane crash in Nebraska on January 11, 1969.

Prior to selecting a jury defendant's motion to dismiss Count I of the complaint was granted. The trial then proceeded on the cause of action alleged in Count II which resulted in a verdict and judgment for defendant.

Count I of the complaint was dismissed by the trial court upon the grounds that the law of Nebraska where the accident occurred did not apply and according to the law of South Dakota the negligence of a pilot is not imputed to the owner of an airplane.

With respect to imputed negligence of a pilot South Dakota adopted the Uniform State Law for Aeronautics in 1925. Although adopted in over twenty states this act was withdrawn as an approved uniform law in 1943. See 1970 Handbook of the National Conference of Commissioners on Uniform State Laws, Table VII, p. 372. However, it continues to be the law of South Dakota and provides in part:

'50--13--6. The owner and the pilot, or either of them, of every aircraft which is operated over lands or waters of this state shall be liable for injuries or damage to persons or property on the land or water beneath, caused by the ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom in accordance with the rules of law applicable to torts in this state.'

'50--13--7. The liability of the owner of one aircraft to the owner of another aircraft, or to aeronauts or passengers on either aircraft, for damage caused by collision on land or in the air, shall be determined by the rules of law applicable to torts on land.'

Accordingly, in the absence of a master-servant relationship the negligence of a pilot is not imputed to the owner of an aircraft in South Dakota except for injuries occurring to persons or property on the ground. See Haskin v. Northeast Airways, Inc., 266 Minn. 210, 123 N.W.2d 81, for the same interpretation of a similar law in Minnesota.

The law of Nebraska governing this subject is expressed in Section 3--101, Nebraska Revised Statutes of 1943, as follows:

'(11) 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.'

The Nebraska statute is substantially the same as the federal law found in 49 U.S.C.A. § 1301(26). The federal act has been interpreted as a 'definition' which does not create a new cause of action, and does not pre-empt state law with respect to liability for torts arising out of the operation of airplanes. McCord v. Dixie Aviation Corp., 10 Cir., 450 F.2d 1129; Yelinek v. Worley, D.C.1968, 284 F.Supp. 679, Rosdail v. Western Aviation, Inc., D.C., 297 F.Supp. 681; Rogers v. Ray Gardner Flying Service, Inc., 5 Cir., 435 F.2d 1389. Iowa, Mississippi and New Hampshire have statutes similar to the Nebraska law which have uniformly been held to make the owner responsible for the negligent conduct of one to whom he entrusts his airplane. Hoebee v. Howe, 98 N.H. 168, 97 A.2d 223; Lamasters v. Snodgrass, 248 Iowa 1377, 85 N.W.2d 622; Hays v. Morgan, 5 Cir., 221 F.2d 481 (involving Mississippi law); and see 8 Am.Jur.2d Aviation, § 72, p. 694. Although the Supreme Court of Nebraska has not been called upon to interpret or apply Section 3--101(11) of their law, we may assume for the purpose of this action it would follow the decisions of Iowa, New Hampshire and Mississippi.

The dismissal of Count I primarily presents a conflict of law question as to whether or not the substantive law of South Dakota or Nebraska governs the rights and liabilities of the respective parties. In seeking a reversal plaintiff contends the substantive law of Nebraska applies to all issues in this action because (1) it is statutorily required by SDCL 21--5--4; and (2) the law of the place of accident applies under the lex loci delicti rule.

SDCL 21--5--4 is entitled 'Foreign Statute of Limitations Applicable' and provides as follows:

'Whenever the death of a citizen of this state has been caused by a wrongful act, neglect, or default in another state, territory, or foreign country for which a right to maintain an action and recover damages in respect thereto is given by a statute of such other state, territory, or foreign country, such right of action may be enforced in this state within the time prescribed for the commencement of such action, by the statute of such other state, territory, or foreign country.'

This statute authorizes the enforcement of another state's wrongful death act in South Dakota. It also 'borrows' the statute of limitations of the foreign act. When the wrongful death act of another state is relied on for recovery in this state the provisions of the foreign act relating to the measure and amount of damages and the time within which action can be commenced would normally apply. Otherwise, our 'borrowing' statute does not contemplate or require the application of the foreign state's substantive law to other issues in the case.

Although this court has never directly expressed itself on the subject, it has generally been assumed our state would follow the prevailing rule that the place of the wrong, or the lex loci delicti, governs the substantive rights of parties to a multistate tort action as expressed in the 1934 edition of Restatement of the Law, Conflict of Laws, § 378. See McMahon v. De Kraay, 70 S.D. 180, 16 N.W.2d 308.

Although the lex loci delicti or 'place of the wrong' rule has the virtue of certainty, ease of application, and predictability, it has lost favor in recent years with many legal scholars, commentators, and courts because of its unrealistic, unbending, and mechanical application. The modern approach is toward a more flexible and analytical consideration of relevant factors to determine what law should govern the...