Muncie Aviation Corp. v. Party Doll Fleet, Inc., No. 75-2007

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore WISDOM, BELL and CLARK; WISDOM
Citation519 F.2d 1178
Docket NumberNo. 75-2007
Decision Date25 September 1975
Parties1 Fed. R. Evid. Serv. 133 MUNCIE AVIATION CORPORATION, Plaintiff-Appellee, v. PARTY DOLL FLEET, INC., Defendant-Appellant. Summary Calendar. *

Page 1178

519 F.2d 1178
1 Fed. R. Evid. Serv. 133
MUNCIE AVIATION CORPORATION, Plaintiff-Appellee,
v.
PARTY DOLL FLEET, INC., Defendant-Appellant.
No. 75-2007
Summary Calendar. *
United States Court of Appeals,
Fifth Circuit.
Sept. 25, 1975.

Page 1179

Glover McGhee, Atlanta, Ga., for defendant-appellant.

J. Arthur Mozley, John P. Hines, Ronald L. Reid, Orinda D. Evans, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before WISDOM, BELL and CLARK, Circuit Judges.

Page 1180

WISDOM, Circuit Judge:

The primary issue this appeal presents is whether advisory materials not having the force and effect of law but published by a governmental agency, are admissible as an exception to the hearsay rule, when such materials are relevant to the issue of negligence and are otherwise trustworthy. We hold that they are admissible and affirm the judgment below.

This case arose out of a collision between Muncie Aviation Corporation's Piper Seneca aircraft and Party Doll Fleet's Cessna 310-J aircraft on March 1, 1972, at the Cartersville-Barstow County Airport in Georgia. Muncie sued for damages to its aircraft, alleging negligence by Party Doll's pilot in failing to follow the standard landing traffic pattern procedures at an uncontrolled airport, and in failing to familiarize himself before the flight with advisory materials issued by the Federal Aviation Administration (F.A.A.). The defendant counterclaimed, alleging negligence by the plaintiff's pilot in failing to yield the right-of-way and in failing to maintain a properly working radio in the aircraft. The jury returned a verdict in favor of Muncie, the plaintiff. Following the trial court's denial of a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, Party Doll appealed.

Of the grounds assigned by the appellant to reverse the judgment below, all of which the Court has considered, the most significant, in terms of this decision's effect on the law, is the alleged error of the trial court in permitting the plaintiff to introduce two advisory circulars promulgated by the F.A.A. containing recommended landing procedures for pilots approaching uncontrolled airports such as the Cartersville-Barstow field. The recommendations, though merely advisory and without the force or effect of law, were offered by the plaintiff as evidence of the standard of care customarily followed by pilots approaching uncontrolled airports. Entitled "Traffic Advisory Practices at Non-Tower Airports," the circulars recommended that pilots approaching an uncontrolled field broadcast their approach over a plane-to-plane frequency of 122.9. They further recommended that this broadcast be made during each of the various "legs" of the standard landing traffic pattern. On cross-examination, the defendant's pilot testified he had neither broadcast his approaching landing over the recommended frequency, nor followed the traffic pattern referred to in the circular, but had instead, broadcast his approach over a 122.8 Unicom frequency.

The defendant objected to the introduction of the circulars, contending that they were merely opinions of the writers, and had not been consulted by the defendant's pilot. The trial court, conceding that the circulars were without the force or effect of law, admitted the publications, as well as testimony of their contents, as evidence of practices customarily followed by pilots at uncontrolled airports and thus, relevant to establish the standard of care in determining negligence. At no time did the court instruct the jury that either the circulars themselves or the inference of custom derived from their contents and the testimony relating to them was dispositive of the applicable standard of care. Rather, they were admitted to provide the jury with guidelines for determining what procedures were followed by pilots in the ordinary course of such landings and to assist the jury in measuring ordinary negligence.

I.

The relevance of the circulars to the issues of the defendant's negligence and the plaintiff's contributory negligence is manifest. Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence. 1 Compliance or noncompliance with such custom, though not conclusive

Page 1181

on the issue of negligence, is one of the factors the trier of fact may consider in applying the standard of care. 2 Both the defendant's and the plaintiff's pilots testified to their general familiarity with the F.A.A. advisory materials, and other witnesses testified that the landing procedures recommended in the circulars were generally followed. The trial court was justified therefore in concluding they were relevant evidence of customary practices among aircraft pilots. 3 Thus, the references in the circulars to the various "legs" of the standard traffic pattern were relevant to prove that the defendant's pilot, in failing to execute the standard pattern, fell below the standard of care ordinarily exercised by pilots in similar circumstances. Similarly, the broadcasting frequency recommended in the circulars was relevant to rebut the charge of the plaintiff's contributory negligence, by demonstrating that even had the plaintiff's pilot been flying with a properly operating radio tuned to the recommended frequency, he would not have heard the defendant's pilot announcing his landing over another frequency.

It should also be noted that the circulars were relevant to show the defendant's noncompliance with a specific F.A.A. regulation requiring every pilot, before beginning a flight, to familiarize himself with all available information concerning that flight. 4 To the extent the defendant's pilot failed to consult the advisory circulars or to follow their recommendations, the jury could permissibly infer that he failed to meet the appropriate standard of due care. Thus, the recommendations contained in the F.A.A. advisory circulars, whether offered as evidence of the landing procedures customarily followed by pilots at uncontrolled airports, or to show noncompliance with a specific F.A.A. regulation having the force and effect of law, were clearly relevant to the issues of the defendant's negligence and the plaintiff's contributory negligence.

II.

We cannot say that the trial court's admission of the advisory circulars violated the general prohibition against the use of hearsay. Hearsay is usually defined as the use of an out-of-court statement for the truth of matters asserted in the statement. 5 Assuming for purposes of this opinion that the F.A.A. advisory circulars were hearsay, 6 the applicable

Page 1182

law governing their admissibility is Federal Rule of Civil Procedure 43(a). 7 By "enabling federal courts to apply a liberal, flexible rule for the admissibility of evidence, unencumbered by common law archaisms", 8 Rule 43 provides considerable leeway for expanding the traditional exceptions to the hearsay rule when the relevancy, trustworthiness, and probative value of the evidence is otherwise guaranteed.

In Dallas County v. Commercial Union Assurance Co., 5 Cir. 1961, 286 F.2d 388, this Court adopted the policy of Rule 43(a) by upholding the admission of an unsigned newspaper article written 58 years before, recounting the details of a then recent fire in the Dallas County Courthouse, to prove the courthouse had been previously...

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  • Management Activities, Inc. v. U.S., No. CV 94-8313 JMI (CTx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 11, 1998
    ...care among all pilots. Dyer v. United States, 832 F.2d 1062, 1069 (9th Cir.1987)(citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180 (5th Cir.1975)); In re Air Crash Disaster at JFK, 635 F.2d at The AIM states, in part: "When visually following a preceding aircraft, ......
  • Stone v. United Engineering, a Div. of Wean, Inc., No. 23101
    • United States
    • Supreme Court of West Virginia
    • July 8, 1996
    ...observed in Frazier v. Continental Oil Co., 568 F.2d 378, 382 (5th Cir.1978) (quoting Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1183 (5th Cir.1975)), the safety standards and codes such as those compiled by ANSI 'representative of "a consensus of opinion carrying the a......
  • Rainey v. Beech Aircraft Corp., Nos. 84-3625
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 22, 1987
    ...also Melville v. American Home Assurance Co., 584 F.2d 1306, 1316 (3d Cir.1978) (citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir.1975)). Although the plaintiffs knew months before trial that the defendants would seek to admit LCDR Morgan's investigative report......
  • Turner v. U.S., Nos. 1:06CV223
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 8, 2010
    ...823 F.2d at 739; Barbosa v. United States, 811 F.2d 1444, 1446-47 (11th Cir.1987); Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180-81 (5th Cir.1975). The purpose of the AIM is to "instruct pilots about basic flight information, air traffic control procedures, and genera......
  • Request a trial to view additional results
68 cases
  • Management Activities, Inc. v. U.S., No. CV 94-8313 JMI (CTx).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 11, 1998
    ...care among all pilots. Dyer v. United States, 832 F.2d 1062, 1069 (9th Cir.1987)(citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180 (5th Cir.1975)); In re Air Crash Disaster at JFK, 635 F.2d at The AIM states, in part: "When visually following a preceding aircraft, ......
  • Stone v. United Engineering, a Div. of Wean, Inc., No. 23101
    • United States
    • Supreme Court of West Virginia
    • July 8, 1996
    ...observed in Frazier v. Continental Oil Co., 568 F.2d 378, 382 (5th Cir.1978) (quoting Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1183 (5th Cir.1975)), the safety standards and codes such as those compiled by ANSI 'representative of "a consensus of opinion carrying the a......
  • Rainey v. Beech Aircraft Corp., Nos. 84-3625
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 22, 1987
    ...also Melville v. American Home Assurance Co., 584 F.2d 1306, 1316 (3d Cir.1978) (citing Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir.1975)). Although the plaintiffs knew months before trial that the defendants would seek to admit LCDR Morgan's investigative report......
  • Turner v. U.S., Nos. 1:06CV223
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 8, 2010
    ...823 F.2d at 739; Barbosa v. United States, 811 F.2d 1444, 1446-47 (11th Cir.1987); Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180-81 (5th Cir.1975). The purpose of the AIM is to "instruct pilots about basic flight information, air traffic control procedures, and genera......
  • Request a trial to view additional results

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