Insurance Co. of North America v. Saltzman, Civ. No. 338.
| Decision Date | 17 April 1953 |
| Docket Number | Civ. No. 338. |
| Citation | 111 F. Supp. 694 |
| Parties | INSURANCE CO. OF NORTH AMERICA et al. v. SALTZMAN. |
| Court | U.S. District Court — Western District of Arkansas |
Rector, Cockrill, Limerick & Laser, Littlé Rock, Ark., for Insurance Co.
Jim Merritt, McGehee, Ark., for V. F. W.
Thomas B. Tinnon, Mountain Home, Ark., for defendant.
On July 17, 1952, plaintiffs filed their complaint in which they alleged that they were damaged as a proximate result of the negligence of the defendant.
The defendant filed his answer to the plaintiffs' complaint and the case was set for trial on March 9, 1953. On that date the case was submitted to the Court upon the amended stipulation of the parties and the depositions of Bruce Campbell and R. B. Handy, Jr. The Court ordered counsel for the respective parties to submit briefs in support of their contentions and this has now been done.
After considering the pleadings, the amended stipulation of the parties, the depositions, and the briefs filed herein, the Court now makes and files the following findings of fact and conclusions of law, separately stated.
The plaintiff, Veterans of Foreign Wars of the United States, hereinafter referred to as V.F.W., is a corporation organized and existing under the laws of the United States and maintains its national headquarters in Kansas City, Missouri. The plaintiff, Insurance Company of North America, hereinafter called Insurance Company, is a Pennsylvania corporation qualified to do business in the State of Arkansas.
The defendant, B. N. Saltzman, is a citizen and resident of the State of Arkansas and resides in the Western District of Arkansas, Harrison Division.
The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000.
On November 28, 1951, a Ryan Navion Airplane, owned by plaintiff, V.F.W., and being piloted by Bruce Campbell, a salaried employee of said plaintiff, was landed at the Flippin, Arkansas, airport. The Commander-In-Chief of the V.F.W., Frank C. Hilton, was the only passenger in the airplane and was travelling on official V.F.W. business.
Upon arriving at the airport, the pilot did such things as are customarily done by a pilot of a Ryan Navion Aircraft, including leaving all switches, throttles and controls in their normal position. At the request of Mrs. Genevia Crane, wife of the operator of the airport, the pilot left the plane unlocked and the brakes off and disengaged to facilitate the airport employees in properly storing the airplane in the hangar overnight.
After the pilot and his passenger had departed from the airport, the defendant, B. N. Saltzman, who is a regularly licensed and practicing physician in the area of Mountain Home, Baxter County, Arkansas, and who is also a licensed pilot of his own aircraft, approached the Ryan Navion Airplane with an intention of examining it since he had been considering purchasing such an aircraft. Without permission or knowledge of Hilton, Campbell or Mrs. Crane, the defendant entered the cabin of the airplane and began examining and operating various instruments, switches, button controls and equipment. The defendant, after operating the controls for several minutes, unintentionally started the airplane in motion. He attempted to stop the movement of the airplane but was unable to do so because, not being familiar with the Ryan Navion Airplane, he could not locate the brake actuating controls. While the defendant was searching for the brake control on the floor of the aircraft cabin, it traveled approximately 90 to 100 feet and crashed into the side of the Flippin Airport hangar, causing extensive damage to the aircraft.
The airplane was damaged in the sum of $3,532.08, of which amount the plaintiff, Insurance Company, paid the sum of $3,232.08 pursuant to the terms of its Aircraft Hull Policy of Insurance covering said airplane, and the plaintiff, V.F.W., paid the sum of $300 under the deductible provision of the policy.
Insofar as appears from the evidence, the airplane was in as good condition after being repaired as it was before it was damaged, and it follows that the sum of $3,532.08 represents the difference in the market value of the airplane immediately before and immediately after the injury.
After the accident, V.F.W. paid $61.81 for long distance telephone calls made in connection with said accident. These calls included notification of V.F.W. headquarters of the accident, notification of the insurance companies, filing of an accident report with the Civil Aeronautics Authority, checking the progress being made in repairing the airplane, etc.
As Commander-In-Chief of the V.F.W., Mr. Hilton is required to travel extensively, and only by traveling in a private airplane can he keep pace with the crowded itinerary which he follows. For a short time after the accident he maintained his schedule by traveling on commercial aircraft, and for this travel the V.F.W. paid the sum of $220.61.
Later, an airplane was rented for the purpose of keeping the itinerary of Mr. Hilton. Under the rental agreement, V.F. W. paid $28 per hour as well as the expenses for fuel, oil, hangar, etc. The airplane was used for 85 hours and V.F.W. paid the sum of $2,380 for the rental of said airplane while its damaged Ryan Navion Airplane was being repaired.
When the airplane was rented by V.F. W., it was necessary to transfer the liability insurance policy from the damaged aircraft to the rented aircraft, since the rental contract did not provide insurance in the event of damage. For this transfer V. F. W. paid the sum of $28.
The pilot of the damaged aircraft, Bruce Campbell, receives an annual salary of $6,500. From the date of the accident until V.F.W. rented another airplane, a period of four weeks, Mr. Campbell was paid his regular salary although he was not piloting an airplane for V.F.W. During this period the V.F.W. paid him the sum of $418.60 as his salary.
Mr. Campbell also has an expense account covering hotel expenses, transportation, telephone calls, telegrams, and things of that nature. In addition, he is paid a per diem of $7.50 which is primarily a food allowance.
Subsequent to the accident, Mr. Hilton did not feel that the damaged airplane would be safe for travel and he requested Mr. Campbell to obtain information concerning the purchase of a new airplane. Mr. Campbell made a trip for the purpose of getting this information, and for this trip he was paid his expenses and per diem by V.F.W. Mr. Campbell also made a trip for the purpose of renting another airplane and a trip to test fly and take delivery of the Ryan Navion Airplane after it was repaired. On each of these trips he received his expenses and per diem from V.F.W. The total amount of Mr. Campbell's expenses paid by V.F.W. on these trips was $522.75.
In following his extended itinerary, Mr. Hilton carried with him a considerable amount of baggage. After the accident it was necessary for him to ship part of this baggage to his headquarters at Kansas City, Missouri. V.F.W. paid the sum of $6.38 for this shipment.
The facts being undisputed, and this being a diversity suit, the Court is required to ascertain and apply the law of the State of Arkansas to the facts in deciding the issues presented herein.
Negligence, under Arkansas law, is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the same or similar circumstances. St. Louis-San Francisco Ry. Co. v. Ward, 197 Ark. 520, 524, 124 S.W.2d 975; Self v. Kirkpatrick, 194 Ark. 1014, 1022, 110 S.W.2d 13.
Doubtlessly, the actions of the defendant in meddling with the airplane amounted to a "doing of something that a person of ordinary prudence would not do," and thus he clearly was guilty of negligence and is liable for any injuries and damage proximately resulting from his negligence.
Before negligence may be said to be the proximate cause of an injury it must appear that the injury was the natural and probable consequence of the negligent act, and that it ought to have been foreseen in the light of attending circumstances. Ozark Packing Co. v. Stanley, 211 Ark. 749, 202 S.W.2d 352; Hook, Administrator, v. Reynolds, 203 Ark. 259, 261, 156 S. W.2d 242; Southwestern Bell Telephone Co. v. Adams, 199 Ark. 254, 261, 133 S.W. 2d 867.
No Arkansas case involving damages to an airplane has been cited to the Court by either of the plaintiffs or the defendant, but there are many Arkansas decisions defining the measure of recovery to be applied in cases where automobiles are damaged, and the Court perceives of no reason why the same rules of law would not govern in determining the recovery of damages to an airplane.
The rule is firmly established in Arkansas that the measure of property damages arising out of an automobile collision is the difference between the market value of the property immediately before the injury and its market value immediately after the injury. Watson v. White, 217 Ark. 853, 858, 233 S.W.2d 544; United Transports, Inc. v. Johnson, 215 Ark. 411, 415, 220 S.W.2d 814; Golenternek v. Kurth, 213 Ark. 643, 647, 212 S.W.2d 14, 3 A.L.R. 2d 593; Kane v. Carper-Dover Mercantile Co., 206 Ark. 674, 679, 177 S.W.2d 41.
However, proof of the amount paid in good faith for repairs necessitated by a collision is sufficient if, when considered along with all the other evidence, it is shown to fairly represent the difference in the market value before and after the injury. Nicholas v. Bingamon, 219 Ark. 748, 244 S.W.2d 782; Watson v. White, supra; Cochran v. Long, 214 Ark. 677, 679, 217 S.W.2d 612; Golenternek v. Kurth, supra; Kane v. Carper-Dover Mercantile Co., supra. An illustration of the application of this rule appears in Kane v. Carper-Dover Mercantile Co., supra, at page 679 of 206 Ark., at page 43...
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