Lake Air, Inc. v. Duffy, 32254

• Decision Date: 23 April 1953
• Docket Number: No. 32254,32254
• Parties: LAKE AIR, Inc. v. DUFFY et al.
• Court: Washington Supreme Court

Page 478

42 Wn.2d 478

256 P.2d 301

LAKE AIR, Inc. v. DUFFY et al.

No. 32254.

Supreme Court of Washington, Department 1.

April 23, 1953.

Johnson & Johnston, Seattle, for appellants.

Dorsey, Haight & Holland, Seattle, for respondent.

MALLERY, Justice.

Defendant Duffy rented an airplane from plaintiff to fly from Seattle to a farm near Quincy, Washington. He signed a rental contract in which he agreed to fly 'only in daylight * * *. To land at established airports except as a precautionary or emergency measure.' Defendant Duffy is in the business of installing furnaces. He loaded a furnace in the plane, and flew to a private field or cow pasture on a farm near Quincy, where he was to install the furnace in the owner's house. He arrived after dark, and cracked the plane up considerably in landing.

Plaintiff sued for damages to the plane in two causes of action. One sounding in tort, and one in contract. The trial court gave judgment upon both causes of action, with the provision that recovery should not be cumulative. Defendants appeal, and contend that respondent should not prevail on either cause of action.

We shall consider the action ex contractu, and refer to the appellants as if Duffy was the sole appellant.

Appellant makes six assignments of error. The second assignment is that the trial court erred in making its finding of fact that appellant executed an aircraft rental contract, and that respondent did not use fraud in procuring its execution.

We are satisfied, from an examination of the record, that the trial court's finding of fact is amply supported by the evidence. Appellant was obviously in a hurry to take off, and respondent questioned him to secure the information necessary to fill out the blanks in the contract form, which was submitted to appellant for his signature without any representations of any kind. Appellant had ample opportunity to examine the contract in as great a detail as he cared, and he failed to do so for his own personal reasons. Under these circumstances, he cannot be heard to deny that he executed the contract, and he is bound by it. 12 Am.Jur. 628, § 137; 1 Williston on Contracts (Rev.Ed.) 89, § 35; Perry v. Continental Insurance Co., 178 Wash. 24, 33 P.2d 661; and Terminal Trading Co. v. Babbit, 7 Wash.2d 166, 109 P.2d 564.

Appellant's third assignment of error is that the trial court erred in making a finding of fact that the plane was in good operating condition when it was preflight checked by appellant, and that no misrepresentations were made to him.

The issue in the trial over the condition of the plane elicited extensive testimony on both sides. The record presents a situation in which a finding either way could have abundant support, it being entirely a matter of credibility of the witnesses. In this situation we rely heavily upon the trial court who saw and heard them, and accordingly sustain the trial court's finding of fact in this regard.

Appellant's fourth assignment of error is directed to the trial court's finding of fact that the landing of the plane of the private field was not emergent; that it violated the aircraft rental agreement; that appellant's contention that the flaps, generator, and brakes were defective was not true and did not contribute to the accident; and that respondent should recover the amount of money expended in procuring a jig to repair the damage done to the plane, and the amount expended in dismantling, magnafluxing, and assembling the aircraft motor.

The evidence was highly in conflict as to the condition of the generator, flaps, and brakes. We sustain the trial court's finding that they were in good condition, and in no way contributed to the accident.

We also sustain the trial court's finding that the landing, in the private field, was not emergent. We are satisfied, as was the trial court, that appellant intended to land in that particular field when he left Seattle.

Since we sustain the trial court's finding that the plane was not defective, and that the landing in the cow pasture after dark was not emergent, the appellant is liable for the damage to the plane resulting from...