Lea v. Baumann Surgical Supplies Inc.
| Decision Date | 02 September 1975 |
| Docket Number | No. 10331,10331 |
| Citation | 321 So.2d 844 |
| Parties | Margot R. LEA, Individually, and as tutrix of the minors Robyn Lea and Reid Lea v. BAUMANN SURGICAL SUPPLIES INC. et al. |
| Court | Court of Appeal of Louisiana — District of US |
Neil H. Mixon, Jr., Baton Rouge, for Margot R. Lea.
Walker P. Macmurdo, Baton Rouge, for Newark Ins. Co.
Warren L. Mengis, Baton Rouge, for Baumann Surgical Supplies, Inc.
W. Malcolm Stevenson, New Orleans, for La. Power & Light Co.
Before LANDRY, BLANCHE and YELVERTON, JJ.
Multiple appeals have been taken by the parties in this wrongful death action. The suit is by Mrs. Margot R. Lea, individually, and on behalf of her minor children, Robyn Lea and Reid Lea, for the death of W. K. Lea (Decedent), husband of Mrs. Lea and father of said minors. Decedent was killed August 2, 1972, in the crash of a privately owned 1968 Model Cessna 150, single engine airplane, which craft was attempting a straight entry landing approach at a privately owned 2500 foot grass air strip situated in a sugar cane field belonging to Cora Texas Manufacturing Company (Cora), and located near White Castle, Iberville Parish. The accident occurred at approximately 5:45 P.M. during clear weather. Decedent was a passenger in the plane which struck the static (shield) wire of a 230 KV (high voltage) electrical transmission line owned and operated by Louisiana Power and Light Company (LP ). The plane, piloted by Decedent's close friend, Robert Clement, crashed to the ground after striking the wire. Both Decedent and Clement were killed instantly.
At the time of the accident, Clement, a recently licensed pilot, was employed by Baumann Surgical Supplies, Inc. (Baumann), as Sales Manager. Besides the occupants, the plane contained an EKG machine and a pair of crutches which Clement was delivering to a hospital owned by Dr. Cherie Major and situated at White Castle, approximately five miles from Cora airstrip.
The plane was owned by Clement, Leatus Still and Thomas H. Morrell, and was insured by Newark Insurance Company (Newark).
LP , Baumann and Newark are made defendants herein. Plaintiff alleges LP is liable for Decedent's death due to the negligent construction of the transmission line in the vicinity of the airstrip, which facility allegedly constitutes a hazard to air navigation. LP is also charged with negligence in failing to properly mark the wires and supporting structures with markers, lights or other warning devices allegedly required by Federal regulatory authority.
Baumann's liability is based on the claim that Clement, acting within the scope and during the course of his employment by Baumann, was grossly negligent in making a straight approach landing to the airstrip from the north, knowing of the line's presence, instead of using a standard approved entry pattern and landing at the south end of the field; failing to see the wire; failing to keep his plane under control and maintain a proper lookout; failing to avoid the wire of which he was aware, and flying below the tops of the clearly visible transmission line poles in violation of basic aviation safety rules and instructions governing safe flight.
Newark is made defendant on the ground that a policy which it issued covering subject aircraft, and which was in force on the date of the accident, provides coverage for physical injury to or death of passengers resulting from pilot error or negligence.
LP defends on the grounds that the regulations sought to be invoked by plaintiffs are inapplicable because subject airstrip is not a public airport. Alternatively, LP urges that if the regulations are applicable, the facilities in question do not constitute a hazard to air navigation. LP also contends it was not at fault either in constructing the line near the airstrip or in failing to mark the poles and lines, or in any other respect whatsoever. Lastly, LP contends the sole proximate cause of the accident was Clement's negligence in the respects asserted by plaintiffs.
Baumann denies that Clement was negligent in any manner, and asserts that LP was the sole defendant at fault. Baumann also maintains that Clement was not acting within the scope and during the course of his employment in making the fatal flight. Rather, Baumann asserts, Clement was on a purely personal mission of flying for pleasure, and that his delivering of equipment to Dr. Major was a purely incidental undertaking.
Newark moved for summary judgment on the ground that its policy covered only physical damage to the plane, property damage with regard to the claims of third persons, and personal injury or death claims of non-passengers, and expressly excluded coverage of personal injury and death claims of passengers due to pilot error or negligence. In defense of the merits, Newark reasserts its position of lack of coverage, contends Clement was free of fault, and asserts that LP was the sole negligent defendant.
The case was tried before a jury which rendered a verdict in favor of plaintiff, Margot R. Lea, individually, in the sum of $275,000.00, and as tutrix of her minor children in the amount of $75,000.00, against defendants, Baumann and Newark. In rendering its verdict, the jury also made the following findings of specific facts: Clement was piloting the plane at the time of the crash; Clement was acting within the scope and during the course of his employment by Baumann; Clement was guilty of negligence constituting a proximate cause of the accident; Newark's policy covered passenger injury resulting from pilot error or negligence; LP was guilty of negligence (the nature of which is not stated), but that said negligence was not a proximate cause of the accident; Lea was not piloting the plane, neither was he guilty of contributory negligence or assumption of risk.
Plaintiff has appealed complaining primarily of LP 's release from liability despite the jury finding said defendant guilty of negligence. Additionally, plaintiff urges trial court error in: (1) refusing to admit in evidence photographs of certain aviation orange spherical marking devices which plaintiff contends should have been used to mark the transmission lines in question; (2) refusing to permit cross examination by plaintiff of an LP employee to establish that LP had taken no steps and made no effort to mark the lines or otherwise alleviate the alleged hazardous condition since the accident, and (3) failure to give the jury certain requested special charges.
Baumann has appealed alleging the jury erred in finding Clement guilty of negligence, and finding that Clement was acting within the scope and during the course of his employment at the time of the crash. Baumann also complains that the trial court erroneously charged the jury concerning the test of an employer's liability for the acts of his employees, and also in refusing its special charge that because of the instinct for self-preservation, it must be presumed Clement was exercising ordinary care and did not seek to expose himself to unnecessary risk of harm.
Newark has appealed asserting error in the denial of its motion for summary judgment. Newark joins Baumann in urging that Clement was erroneously found to be negligent, and unites with plaintiff in contending that LP alone should have been cast in judgment. Newark also urges trial court error in admitting certain correspondence between its local agent and owners of the airplane concerning coverage of Newark's policy, which correspondence formed no part of the insurance policy. Most importantly, Newark contends the jury erred in finding passenger bodily injury and death coverage under its policy. Additionally, Newark maintains the lower court erred in refusing its requested special charge that because of the instinct for self-preservation, it must be presumed Clement was exercising due care, and did not seek to expose himself to unnecessary risk, even though the trial court gave a similar charge regarding decedent, Lea, guest passenger.
We affirm the judgment finding Clement guilty of negligence constituting a proximate cause of the accident. We affirm LP 's release from liability, and reverse the judgment holding LP to be negligent. We reverse the judgment decreeing passenger injury coverage under Newark's policy. We affirm Baumann's liability for the negligence of Clement.
In August, 1951, LP acquired from Cora a 100 foot wide servitude for construction of a 115 KV transmission line, and shortly thereafter erected the facility. Between 1960 and 1963, Cora cleared a 2500 foot strip in its cane fields and converted same into a grass landing strip to accommodate crop dusting aircraft utilized in Cora's extensive sugar cane operation. After construction of the strip, Cora, through its President, gave permission to Dr. Cherie Major to use the strip, Dr. Major being the owner of a small airplane. Dr. Major constructed a metal building adjacent to the airstrip to serve as a hangar for his plane. At Dr. Major's expense, electrical power was furnished to the hangar by LP . The record shows that numerous meter readers and service personel of LP , including the local service manager, were aware of the airstrip's presence from the time of construction of the hangar to the date of the accident, a period of several years. It is also conclusively shown that none of LP 's executive personnel were aware of the strip's existence as of the date of the accident. In 1969, LP acquired from Cora an additional 60 feet of right of way abutting the original servitude, this latter acquisition being for the erection of a 230 KV transmission line, which facility was completed in 1969. No notice of the proposed construction was given the Federal Aviation Authority (FAA), neither was the FAA furnished plans for approval prior to erection of the line.
It is stipulated that the transmission line is situated 1,191 feet...
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