Insurance Co. of State of Pa. v. Guzman's Estate

• Decision Date: 13 October 1982
• Docket Number: No. 80-2121,80-2121
• Citation: 421 So.2d 597
• Parties: The INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, a foreign corporation, and Cavico Aircraft Sales, Inc., a Florida corporation, Appellants, v. The ESTATE OF Frank GUZMAN, Deceased, by its Personal Representative Linda Guzman and Linda Guzman, Individually and Lauderdale Air Taxi, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 597

421 So.2d 597

The INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, a foreign corporation, and Cavico Aircraft Sales, Inc., a Florida corporation, Appellants, v. The ESTATE OF Frank GUZMAN, Deceased, by its Personal Representative Linda Guzman and Linda Guzman, Individually and Lauderdale Air Taxi, Inc., a Florida corporation, Appellees.

No. 80-2121.

District Court of Appeal of Florida,

Fourth District.

Oct. 13, 1982.

Rehearing Denied Nov. 30, 1982.

John Murray and Joan S. Buckley of Walton, Lantaff, Schroeder & Carson, Miami, for appellants.

Thomas F. Luken, Fort Lauderdale, for appellees.

GLICKSTEIN, Judge.

Appellee, Lauderdale Air Taxi, Inc., was awarded a final judgment of $80,000 against appellants following a jury verdict. ¹ The judgment compensated appellee for the loss of its aircraft while it was in the custody and control of Cavico Aircraft Sales, Inc., appellant. The action went to trial upon a two count complaint, later amended by stipulation. One count alleged a bailment relationship in which appellee delivered the plane to Cavico for avionics (radio) repairs and Cavico failed, and refused, to redeliver it. The second count alleged the aircraft was stolen due to Cavico's negligence in failing to take adequate precautions against theft. Appellants claim the trial court made numerous erroneous rulings concerning the admissibility of certain evidence and jury instructions. We agree and reverse and remand the cause accordingly.

The facts are shadowy, bizarre and, in large measure, disputed. Frank Guzman owned Lauderdale Air Taxi, Inc. In March of 1979 he purchased for $80,000 in cash a DC-4 plane from a military surplus aircraft dealer located in Arizona. Once ferried to Fort Lauderdale, the plane was delivered on April 25th to Cavico, a fixed-base operator at Fort Lauderdale-Hollywood International Airport, for radio repairs. On May 2nd Guzman told his common law wife, Linda, that he was going to a meeting at a motel to sell the aircraft for $100,000 in cash. He was murdered on that date.

On May 9th, at approximately 2:30 p.m., someone manned the aircraft and flew it away. Frank Guzman, Jr., reported the aircraft as stolen. The report listed Emil Garske ² as a witness. In appellee's case in chief, Garske testified that on the day the aircraft was taken he saw people wandering around it. After going to the telephone to call Guzman's attorney, he returned to the plane to find it missing. Linda Guzman, now known as Linda Shea, testified that she assumed control of Guzman's affairs immediately upon his death ³ and did not authorize anyone to remove the aircraft from Cavico's premises.

Appellants' sole witness, Leland Cameron, portions of whose deposition were read to the jury, testified that he was a retired airline captain who was now in the airplane and parts business in California. He admitted he flew the aircraft from Cavico but claimed he did not steal it. He intended to fly the plane to Georgia to have additional equipment installed in order to satisfy a customer he had who was interested in purchasing the plane. He said someone in Tucson had told him of the aircraft. Once Cameron completed a title search, the report of which he produced at trial, he contacted appellee and talked to Roy Elder and B.H. Sandini, whom he knew as agents acting in appellee's behalf. Cameron testified Elder authorized the flight to Georgia and provided him with a photocopy of a bill of sale, airworthiness certificate, and application for registration, all of which Cameron had with him on May 9th. Elder and he were negotiating the purchase of the aircraft for $82,000 with the resale to be for $90,000. Cameron further said that he reached the aircraft by entering a gate north of the Bush Aviation Building, a gate not under the control of Cavico, and spoke to Elder for a short time before taking off.

On rebuttal, appellee offered evidence that Sandini dealt in stolen motor vehicles. The parties stipulated Elder had died before trial. Counsel read additional portions of Cameron's deposition wherein the deponent testified that James Butler and Christopher Broderick accompanied him on the flight as co-pilot and flight engineer. While the aircraft was in flight forty miles west of Cross City, Florida, and over the Gulf of Mexico, Cameron explained an electrical fire caused him to ditch the aircraft, forcing the threesome into a small raft. The aircraft was lost and a freighter eventually rescued the group and took them to Mexico.

To destroy Cameron's credibility and to create an inference that the aircraft was stolen, appellee placed Broderick on the stand, knowing he would invoke his fifth amendment privilege against self-incrimination when asked if he had stolen the aircraft from Cavico's premises. Testimony of Garske, a pilot himself, was read, establishing that the aircraft burned 200 gallons of fuel an hour and that a flight from Fort Lauderdale to Georgia would not put the aircraft over the Gulf of Mexico at anytime.

Because access to the aircraft was an important issue, there was considerable testimony with respect to the security requirements imposed on Cavico and the precautions actually taken. As a tenant of county-owned premises, Cavico must maintain the high chain link fence that surrounds its perimeters. Large signs on its gates warn against trespassing. Cavico must also lock its access gates after hours; during normal business operations, either monitoring or locking the gates is a permissible way of detering unauthorized entry.

The county also requires its tenants to utilize a badge identification system. Unbadged personnel are to be under the surveillance and escort of authorized personnel during any period in which they are in the Air Operations Area. If an unfamiliar face appears on the premises, Cavico employees are to request appropriate identification. Cavico has an obligation to inform its employees of these procedures.

Access to the aircraft again surfaced in testimony referring to a dispute over whether payment for the repair work had occurred. (Payment would have terminated the bailment arrangement.) Cavico's general manager, Gilbert Vince, testified someone paid appellee's bill of $4,789.04 in cash. In return for the payment, this unidentified individual received a key to the padlock on the aircraft. Guzman, Vince testified, kept telling him he would reclaim the DC-4. When no one showed up, Cavico personnel had to move the plane from in front of Cavico's hangar to a spot on the ramp, where the larger planes are stored.

Appellee attacked this testimony with a number of facts and assertions. First, Vince admittedly could not identify the payor. Second, an officer of Cavico testified that when the plane took off, Vince called her to ascertain whether the bill had been paid, thus raising doubts about the veracity of his testimony. Third, and perhaps most damaging, the chronology of events cast suspicion on Vince's testimony: Cavico received the plane on April 25th; evidence showed the installation work took approximately one week, or until May 2nd, the date of Guzman's death. Vince testified that after he received payment, about two days after he said he told Guzman the work was completed, he spoke to Guzman again about reclaiming the plane. Vince also testified Guzman went to Cavico (after May 2nd) to order more radios.

We now address the four principal issues on appeal.

I

Appellants argue the trial court erred in instructing the jury as to the rebuttable presumption that exists in a bailment relationship because they presented credible evidence to rebut the presumption. ⁴ We agree, but our decision requires that we first explain why this type of presumption is sometimes classified as a vanishing presumption.

Prior to the enactment of the Florida Evidence Code, ⁵ courts explained a presumption as

an inference required by a rule of law to be drawn as to the existence of one fact from the existence of some other established basic fact or combination of facts.

Caldwell v. Division of Retirement, 372 So.2d 438, 440 (Fla.1979). As Caldwell notes, two types of presumptions are recognized in Florida. One type is the vanishing presumption.

A presumption is a rule of law which attaches to certain evidentiary facts and is productive of certain procedural consequences. The presumption is not itself evidence and has no probative value. Florida follows generally [albeit not always] what is sometimes called the Thayerian rule to the effect that when credible evidence comes into the case contradicting the basic fact or facts giving rise to the presumption, the presumption vanishes and the issue is determined on the evidence just as though no presumption has ever existed. Conversely, if the basic facts are sufficiently proven so as to give rise to the presumption and not thereafter contradicted by credible evidence, the party in whose favor the presumption exists becomes entitled to a directed verdict. Thus, in either event, the presumption is productive of these procedural consequences but is not a matter for the jury to consider.

Id. at 440, quoting Nationwide Mutual Insurance Co. v. Griffin, 222 So.2d 754, 756 (Fla. 4th DCA 1969).

Another type of presumption affects the burden of proof. These implement some social policy of the state. As discussed in Caldwell,

[w]hen evidence rebutting such a presumption is introduced, the presumption does not automatically disappear. It is not overcome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required by the substantive law of the case.

Id. ⁶ See also Gulle v. Boggs, 174 So.2d 26 (Fla.1965); Hinson v. Hinson, 356 So.2d 372 (Fla. 4th DCA 1978).

In Reserve Insurance Co. v. Gulf Florida Terminal Co., 386 So.2d 550 (Fla.1980), the Supreme Court of Florida discussed the burden of proof resting on a plaintiff seeking recovery for lost or stolen goods entrusted to a bailee. The court ...