Lange v. Nelson-Ryan Flight Service, Inc., NELSON-RYAN
| Decision Date | 29 June 1962 |
| Docket Number | No. 38487,NELSON-RYAN,38487 |
| Citation | 116 N.W.2d 266,263 Minn. 152 |
| Parties | Lorraine M. LANGE, individually, and as trustee, Respondents, v.FLIGHT SERVICE, INC., Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. The right of appeal from an order denying a new trial exists independent of a prior appeal from an order granting judgment notwithstanding the verdict, and although very broad in scope in reviewing properly assigned errors, its purpose is to correct only such errors as were not, or could not have been, reviewed on the prior appeal.
2. Issues considered and adjudicated on a first appeal become the law of the case and will not be reexamined or readjudicated on a second appeal of the same case. This doctrine of the law of the case is a rule of practice and is founded upon a policy which requires that issues fully litigated be set at rest.
3. Technical progress in the art of flying has reached a point where an airplane cannot be regarded as a dangerous instrumentality per se. Merely undertaking a flight in a modern aircraft free from mechanical defects, where no dangerous conditions known or reasonably to be apprehended are shown, does not provide a sufficient evidentiary basis upon which to submit assumption of risk.
L. L. Schroeder, Minneapolis, for appellant.
Rischmiller, Wasche & Hedelson, Robert Wm. Rischmiller, Minneapolis, for respondents.
This action is one for the recovery of damages for the death of plaintiff's decedent in a plane crash. Both plaintiff's decedent, Wesley M. Lange, and Ronald Percy defendant's employee, were killed in the crash.
The same action was previously reviewed on appeal in Lange v. Nelson-Ryan Flight Service, Inc., 259 Minn. 460, 108 N.W.2d 428, where the facts are fully set out.
After a verdict for plaintiff, defendant moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court granted judgment notwithstanding the verdict and denied a new trial. Plaintiff appealed. By a divided court we reversed, ordering judgment to be entered upon plaintiff's verdict.
Defendant now appeals from that part of the trial court's order denying a new trial.
The determinative issues presented on the prior appeal were: The rules of law applicable to proof of negligence following a plane crash; the sufficiency of the evidence to establish defendant's responsibility for the negligent operation of the plane; proximate cause; and contributory negligence of plaintiff's decedent. Incidental to the issue of proximate cause and defendant's responsibility was the problem of whether a Federal civil air regulation covering the responsibility of the pilot in command was properly construed and applied in determining the question of who was in control, or chargeable with the control, of the plane during the time of its disastrous maneuver.
A careful analysis of the record and a schematic comparison of the arguments advanced by the defendant in this and the prior appeal and in its alternative motion below demonstrates, with the exception noted hereafter, that the same grounds urged by defendant in support of the trial court's granting of judgment notwithstanding the verdict are again urged as a basis for reversal of its denying a new trial.
As in its motion for rehearing, defendant vigorously asserts that we have established an unsound rule of law. The main challenge is to the holding that (259 Minn. 466, 108 N.W.2d 432)--
'* * * the rule applicable to aircraft is that if the aircraft is operated in a negligent manner the pilot in command is negligent regardless of whether or not he is at the controls at the time--at least in the absence of extenuating circumstances * * *.'
Defendant insists that the application of this rule to the operation of a dual-control aircraft, occupied by two licensed pilots, one having the status of a trainee on a checkout flight, under the facts stated in our former opinion, results in establishing a rule of law which imputes to a pilot in command any negligence of the other pilot and, in fact, makes the pilot in command an insurer against any negligent operation. It is further insisted that the gross injustice of this rule is made manifest in this case because there was no evidentiary basis to support an inference as to which pilot was in fact in control of the plane at the time of its disastrous maneuver. Thus defendant again urges that we have approved a jury award which is based on mere speculation and conjecture.
We cannot accept defendant's interpretation of our prior decision as it--not unlike most criticism expressed by a losing litigant--obviously overstates the decision's import. Defendant has twice unsuccessfully advanced identical arguments. We consider it presently inappropriate either to indulge in a reexamination of the arguments and the issues previously reviewed or to restate the rule expressed in our prior decision.
1. Upon principles embodied in the law-of-the-case doctrine we believe this type of re-review should not be granted. We are not unmindful that the scope of review upon appeal from an order denying a new trial is very broad, each error properly assigned being reviewable, 1 and that in fact this court under unusual circumstances has granted a new trial on such an appeal upon the broad ground that the interests of justice require it. 2 It is equally well settled that, while the right of appeal from an order denying a new trial exists independent of the prior appeal from an order granting judgment notwithstanding the verdict, the purpose of a second appeal is to correct only such errors as were not, or could not have been reviewed on the prior appeal. 3
2. There exists a well-established rule that issues considered and adjudicated on a first appeal become the law of the case and will not be reexamined or readjudicated on a second appeal of the same case. 4 This doctrine should be regarded as one separate and distinct from the doctrines of res judicata and stare decisis, although similar fundamental principles underlie each. 5 Its main distinction from res judicata is that it applies only to litigated issues and does not reach issues which could have been but were not litigated. It is a rule of practice, not a limitation on the power of the court to re-review and overrule a prior decision. It should be, and is here, limited to the same case and to only the issues previously decided and its application is not intended to be carried into other cases as a precedent. 6
Since our prior decision the membership of the court has changed. If we were to assume that the arguments of the defendant presently advanced...
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...law of the case and will not be reexamined or readjudicated on a second appeal of the same case." Lange v. Nelson-Ryan Flight Serv., Inc., 263 Minn. 152, 155, 116 N.W.2d 266, 269 (1962) (emphasis added). This doctrine is "limited to the same case and to only the issue previously decided and......
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...111, 763 P.2d 948, 962 (1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1644, 104 L.Ed.2d 159 (1989); Lange v. Nelson-Ryan Flight Service, Inc., 263 Minn. 152, 155, 116 N.W.2d 266, 269 (1962), cert. denied, 371 U.S. 953, 83 S.Ct. 508, 9 L.Ed.2d 500 (1963); Board of Education v. Construction C......
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...litigated on appeal. See Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717 (Minn.1987); Lange v. Nelson-Ryan Flight Service, Inc., 263 Minn. 152, 116 N.W.2d 266 (1962), cert. denied 371 U.S. 953, 83 S.Ct. 508, 9 L.Ed.2d 500 ...
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...it. We therefore hold that the trial court was correct in denying the requested instruction. Lange v. Nelson-Ryan Flight Service, Inc., 263 Minn. 152, 157, 116 N.W.2d 266, 270 (1962), certiorari denied, 371 U.S. 953, 83 S.Ct. 508, 9 L.Ed.2d 500 (1963); Lametti v. Peter Lametti Const. Co., 3......
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...297 F. Supp. 681 (D.Colo. 1969). 12. Lange v. Nelson-Ryan Flight Service, Inc., 254 Minn. 460, 108 N.W.2d 428 (1961); 259 Minn. 460, 116 N.W.2d 266, cert. denied 371 U.S. 953. 13. Section 60.2, 14 Code of Federal Regulations: "The pilot in command of the aircraft shall be directly responsib......