Maxwell v. Fink

• Decision Date: 05 May 1953
• Citation: 58 N.W.2d 415,264 Wis. 106
• Parties: MAXWELL et al. v. FINK.
• Court: Wisconsin Supreme Court

Page 415

58 N.W.2d 415

264 Wis. 106

MAXWELL et al. v. FINK.

Supreme Court of Wisconsin.

May 5, 1953.

Rehearing Denied July 3, 1953.

This is an action by the plaintiffs Dorothy E. Maxwell and Lucian Y. Maxwell (wife and husband) against the executrix of the estate of Howard R. Fink, deceased, to recover damages for personal injuries sustained by the plaintiff wife and to recover the expenses incurred by the plaintiff husband because of such injury to his wife, and for loss of her society and services.

Howard R. Fink, brother of Mrs. Maxwell, was a resident of the City of Kenosha and the owner of a Stinson four-passenger airplane, and held a private pilot's license which permitted him to operate the plane. Mrs. Maxwell was a resident of California and was visiting at the home of her parents in Kenosha during the latter part of July and early part of August, 1951. On July 27, 1951, Howard R. Fink invited Mrs. Maxwell to take a flight in the plane but because of unfavorable weather conditions they returned immediately to the Kenosha airport after taking off. On July 31st he again invited his sister for another flight in the plane and they flew to Waukegan and back. Prior to these two flights Mrs. Maxwell had never flown in a private plane and had ridden in a commercial plane on only one occasion. On August 1, 1951, Howard R. Fink again invited his sister to take a trip in the plane, and this time they flew to Janesville and landed at the city airport and spent sometime in Janesville. In the early afternoon they boarded the plane preparatory to the return flight to Kenosha. The plane took off in an easterly direction on an east and west grass runway, but failed to gain sufficient altitude to clear a row of trees along the highway approximately 1,000 feet beyond the east end of the field. The plane struck the trees which were about 25 feet high, and crashed, killing Howard R. Fink and severely injuring Mrs. Maxwell.

The action was tried to the court and jury and a special verdict was submitted, the first question of which verdict, and the answers of the jury to the subdivisions thereof, being as follows:

'Question 1: At the time and place in question and under the conditions and circumstances shown by the evidence did the deceased, Howard R. Fink, fail to exercise ordinary care not to increase the danger assumed by the plaintiff, Dorothy E. Maxwell, upon entering his airplane or add thereto or create a new danger:

'(a) With respect to the manner in which he used the flaps on the airplane? Answer: Yes.

'(b) With respect to turning his airplane to the left? Answer: No.'

Question 2 of the verdict related to proximate cause and the jury by their answer thereto found that the negligent use of the flaps of the plane was an efficient cause of the crash and resulting injuries to Mrs. Maxwell.

Judgment was rendered upon the verdict in favor of the plaintiffs and against the defendant executrix for the amount of damages and expenses fixed by the jury. The defendant has appealed to this court from such judgment.

Dougherty, Arnold & Waters, Milwaukee, Jeffris, Mouat, Oestreich, Wood & Cunningham and Harry Knipp, Janesville, for appellant.

Vaudreuil & Vaudreuil, Kenosha, for respondents.

CURRIE, Justice.

Counsel for the defendant raise the following issues on this appeal:

(1) Was it error for the trial court to permit the plaintiff to introduce evidence as to the improper use of the flaps on the airplane?

(2) Was there credible evidence to sustain the findings of the jury that Howard R. Fink was causally negligent with respect to the use of the flaps?

(3) Was it error for the trial court to permit witnesses to testify as to the position of the flaps of the plane after the accident, which witnesses did not see the plane until after it had been moved to the Janesville airport, over the objection of counsel for defendant that no proper foundation had been laid to establish that the plane was then in the same condition in which it was immediately following the crash?

(4) Was it error to permit the witness Maugeri, an employee for the Civil Aeronautics Board (hereinafter referred to as C. A. B.) to refresh his memory in testifying?

(5) Was the finding of the jury based upon speculation and conjecture?

(6) Did Howard R. Fink exercise the skill and ability which he actually possessed in operating the plane as he took off from the Janesville airport?

The plaintiffs' complaint alleged that Howard R. Fink, in attempting to take off from the Janesville airport, operated his plane in a negligent and careless manner in several specified respects. There was no specific allegation which made any mention of the use of the flaps, but the third ground of negligence alleged was:

'That he failed to so operate the airplane so as to gain sufficient altitude to clear trees in his path.'

A short time prior to the trial counsel for the defendant held an adverse examination of Mrs. Maxwell and asked her in what respects she claimed her brother was negligent in operating the plane when taking off from the Janesville airport, and in her answers to such questions she made no reference to any improper use of the flaps. At the trial when plaintiffs' counsel attempted to question Mrs. Maxwell and other witnesses with respect to Howard R. Fink's use of the flaps of the plane in taking off from the Janesville airport defendant's counsel objected on the ground that the complaint did not allege any improper or negligent use of the flaps. The trial court overruled these objections, being of the opinion that the afore-quoted third ground of negligence stated in the complaint, that of failing to operate the plane so as to gain sufficient altitude to clear the trees, was broad enough to include negligent or improper use of the flaps.

On this appeal defendant's counsel strenuously urge that they based their preparation for trial on the specific allegations of negligence contained in the complaint and on the testimony given by Mrs. Maxwell at her adverse examination, and, in view of the fact that Mrs. Maxwell made no mention therein of any improper use of the flaps, counsel for the defendant were taken by complete surprise when such testimony was offered and therefore it was error for the trial court to have received such testimony.

The testimony disclosed that the position of the flaps of the plane was controlled by a lever situated between the pilot and the passenger occupying the front seat of the plane. When the flaps were in a horizontal position this control lever was pushed forward almost horizontal with the floor of the plane. In order for the pilot to lower the flaps from the horizontal position it was necessary for him to reach down and take hold of the lever and press a spring button on the same and pull the lever back and up. There were two notched positions into which the lever could be pulled. For the 'half flaps' position the lever was pulled up so that it formed an angle of about 45° with the floor, and for the 'full flaps' position (being that of having the flaps lowered to the lowest possible position), the lever was pulled into the last notch so as to be practically perpendicular with the floor. In taking off, a plane gains altitude chiefly from speed, although the titling down of the flaps, if the same speed could otherwise be maintained, would also aid in obtaining altitude. However, having the flaps at the 'full flaps' position acts as a brake and reduces speed, and this position of the flaps is recommended for use only in landing a plane when the objective is to reduce speed, and never in taking a plane off the ground where speed is all-important in gaining altitude.

With these facts in mind it would seem clear that the act of an operator of a plane in controlling the position of the flaps is part of the management and control of the plane. This being so, evidence with respect to the position in which Howard R. Fink had the flaps at the time of taking off at the Janesville airport was clearly admissible under the allegation of negligence relating to the operation of the plane so as to gain sufficient altitude to clear the trees.

Apparently it...