Morrison v. Le Tourneau Co. of Georgia, 10587.

• Decision Date: 27 October 1943
• Docket Number: No. 10587.,10587.
• Citation: 138 F.2d 339
• Parties: MORRISON v. LE TOURNEAU CO. OF GEORGIA et al. LE TOURNEAU CO. OF GEORGIA et al. v. MORRISON.
• Court: U.S. Court of Appeals — Fifth Circuit

138 F.2d 339 (1943)

MORRISON v. LE TOURNEAU CO. OF GEORGIA et al. LE TOURNEAU CO. OF GEORGIA et al. v. MORRISON.

No. 10587.

Circuit Court of Appeals, Fifth Circuit.

October 27, 1943.

Alex W. Smith and Croom Partridge, both of Atlanta, Ga., and Walter P. Armstrong, of Memphis, Tenn., for appellant and cross-appellee.

A. C. Wheeler, of Gainesville, Ga., and Clifton W. Brannon and C. M. McClure, both of Toccoa, Ga., for appellees and cross-appellant.

Before SIBLEY, HOLMES, and WALLER, Circuit Judges.

WALLER, Circuit Judge.

Out of the fog, mists, and clouds that enshrouded Beaverdam Mountain on the morning of August 19, 1940, a little two-place, dual-controlled cub plane plunged to earth. In its wreckage were the lifeless and mangled bodies of two young men. One, Alton Vance Morrison, was the plaintiff's intestate. The other, Don Phillip LeTourneau, was the pilot of the plane.

Beaverdam Mountain is in the Sandy Mush Gap settlement in North Carolina, near the Buncombe County line.

Asserting a right to maintain the action under the death-by-wrongful-act statute of North Carolina, the administrator of Morrison's estate sued Toccoa Falls Flying School, Inc., as the owner and lessor, and LeTourneau Company, of Georgia, as the lessee and operator, of the fallen plane. The plane on the occasion was, and frequently theretofore had been, rented by the LeTourneau Company, and there is evidence to support the allegation that it was being flown at the time of the crash on business of the lessee by Don Phillip LeTourneau, an employee of the LeTourneau Company. Young Morrison was a night watchman for LeTourneau Company and there is no evidence tending to show that he was about the business of, or authorized by, the LeTourneau Company in making the flight. Whether he was riding at his own request, or for a consideration to the pilot, or at the request or permission of the pilot, or as a student of aviation, or as an air hitchhiker back to his native Tennessee, to which State the plane was evidently headed, are unsolved questions.

The complaint alleged: (a) That the plane was negligently and carelessly operated by the agent and employee of LeTourneau Company; (b) that the plane was negligently and carelessly overloaded beyond its carrying capacity in that it was loaded with machinery weighing in excess of 75 pounds, more or less; (c) that the plane was in defective condition and not suitable for carrying two passengers plus machinery in a cross country flight from Toccoa, Georgia, to Morristown, Tennessee.

Residents of Sandy Mush Gap testified that it was foggy, misty, and cloudy, and that "a severe wind for that time of year" was sweeping around the mountains; that a plane was heard above the fog or clouds an hour and one-half before the crash and at other and later intervals; that the motor of a plane heard by one witness, more than an hour before, appeared to be functioning badly; that planes frequently pass over that section. There is no definite proof that the plane motor or motors heard considerably earlier was of the plane in question. One witness saw the plane after it had started its plunge earthward. It then had a broken wing, and the wing was "turned back towards the tail of the plane". Another witness saw the plane a few seconds earlier, and her testimony was that the motor was popping, and that the plane shot straight upward some 200 feet, and that the wings were all right "until it turned back down", and that when it turned back down a wing broke, "just like the breaking of a limb on a tree".

The wrecked motor had dual ignition switches and both were on. The plane was dual controlled so that a person sitting in...