Naxera v. Wathan

Decision Date11 June 1968
Docket NumberNo. 52769,52769
Citation159 N.W.2d 513
PartiesCharles NAXERA, Appellee, v. Jim L. WATHAN, Appellant.
CourtIowa Supreme Court

William R. Shuttleworth, of Shuttleworth & Ingersoll, Cedar Rapids, for appellant.

Donald E. Smith of Lynch, Dallas, Smith & Harman, Cedar Rapids, for appellee.

MASON, Justice.

This is a law action tried to the court in which plaintiff Naxera seeks recovery for damage sustained to his lightweight 'Taylorcraft' airplane.

Defendant Wathan, operator of an airplane parking ramp service adjoining Cedar Rapids Municipal Airport, offered storage, maintenance and tie-down services for aircraft on his ramp. Under the facilities offered, plane owners tied their planes to the ramp with ropes furnished by defendant for a monthly storage fee of $7.50. In July 1958 plaintiff delivered his plane, in airworthy condition, to defendant's ramp for storage under a bailment arrangement. It remained in defendant's possession and control under this bailment until September 3 when the damage occurred. About 6:48 p.m. a tie-down rope furnished by defendant broke during a storm accompanied by high wind gusts, plaintiff's plane was overturned and damaged beyond repair.

There was another airplane, a Piper Cruiser, overturned, but this was not due to rope breakage. The rope held, but the wind pulled the strut fittings out of the aircraft. The manufacturer of the Piper builds it intentionally so the fittings will pull loose in severe winds.

None of the six or seven other planes tied on this ramp were broken loose or damaged. Plaintiff's tie rope was the only one broken.

I. Plaintiff alleged a bailment for hire, specific negligence in failing to provide strong and sound ropes and in failing to inspect and discover their condition and manner in which the plane was secured; as a proximate result of defendant's negligence plaintiff's plane was damaged.

Defendant in answer admitted the bailment, damage to plaintiff's airplane while on defendant's premises, but denied negligence, contending he had used due care to prevent the loss; and pleaded as an affirmative defense the sole proximate cause of plaintiff's damages was due to an unusual and unanticipated Act of God.

The parties stipulated plaintiff was the owner of the airplane as alleged in his petition; that since July plaintiff's plane had been parked and stored on defendant's ramp with facilities furnished by defendant under a bailment arrangement; at the time of delivery to defendant plaintiff's plane was in good airworthy condition; and while plaintiff's plane was bailed to defendant, parked and tied down on his ramp, it was damaged in a storm.

The affirmative defense relied on by defendant as an unusual, unanticipated and indefensible Act of God is described as a light rain commencing about 6:40 p.m. accompanied by lightning and some wind, but nothing unusual. The peak of the thunderstorm came somewhat later accompanied by thunder, lightning, heavy rains, winds and clouds which darkened the area. It passed over the ramp where plaintiff's plane was stored, moving generally from west or northwest to east. The intense period of the storm was brief, lasting about 10 minutes and 'was over almost as soon as it got there.' By 6:55 the storm passed and the wind had died down.

There was one eyewitness, a 'lineman' employee of defendant, who established the damage to plaintiff's plane occurred during this period of peak intensity.

At the time of the storm the Federal Aviation Agency maintained a weather reporting station at the Cedar Rapids Municipal Airport. A certified copy of the official weather bureau log for September 3 was offered in evidence. This indicated gusts peaking to 70 knots or a wind velocity of 80.6 miles per hour at 6:48 p.m.

We are told a distinction is made between 'wind' and 'gusts.' Winds have a direction, constant or average velocity and continuous duration. Gusts have no one direction as they hit from all directions and are of short duration.

The parties stipulated the court might take judicial notice of the Beaufort Wind Scale classifications. This scale tries to classify winds at various forces and compare these forces to the effect on terrain. It classifies winds of 73--82 miles per hour as a hurricane with devastation occurring. However there was little or no evidence of any devastation this night by reason of the winds or evidence of any damage of consequence to buildings, trees or other such property.

II. The trial court found the damage to plaintiff's plane was caused by both the high wind and the deteriorated or worn condition of the rope itself; defendant was negligent in failing to provide a good quality rope to tie down plaintiff's plane which was a proximate cause of the damage; defendant failed to establish by a preponderance of the evidence the damage would have occurred even though defendant were not negligent, which means defendant failed to establish the Act of God as the sole proximate cause of plaintiff's damages. He held for plaintiff.

Defendant appeals from judgment for plaintiff of $1220.62. His assignments of error present the questions whether there was substantial evidence to support the trial court's findings, and whether the court erred in its application of the doctrines of proximate cause, duty of care and burden of proof to an airport bailment case.

III. This being a law action tried to the court, it is reviewable on errors assigned and is not triable de novo here. Rule 334, Rules of Civil Procedure. The evidence will be viewed in the light most favorable to plaintiff--this is also the light most favorable to the trial court's judgment. The trial court's findings of fact have the effect of a special verdict and are equivalent to a jury verdict. If supported by substantial evidence and justified as a matter of law, they are binding on us and the judgment will not be disturbed on appeal. Citation of authority is unnecessary. Rule 344(f)(1), R.C.P.

Our problem is to determine whether these facts, with the proper inferences that may be drawn from them, do in fact warrant the findings made within the limit of the rules hereinafter set forth. We will not weigh the evidence or pass on the credibility of witnesses. Crawford Lumber Co. v. Abstract Guaranty Co., 253 Iowa 705, 708, 113 N.W.2d 703, 705; Iowa Mutual Insurance Company v. Combes, 257 Iowa 135, 138, 131 N.W.2d 751, 752; and Zach v. Morningstar, 258 Iowa 1365, 1368, 142 N.W.2d 440, 442.

However, we may find error if the trial court applied erroneous rules of law which materially affect the decision. France v. Benter, 256 Iowa 534, 536, 128 N.W.2d 268, 270.

IV. Defendant contends the trial court erred in imposing the burden of proof. He argues the court as a practical matter held defendant accountable not as a bailee but under strict liability and virtually without fault by subjecting him to an unknown presumption of negligence which could be escaped only by affirmatively disproving negligence, and affirmatively establishing an intervening Act of God as the sole proximate cause of the loss.

He contends in a bailment case, as here, there are five stages in the proof: (1) bailor establishes the bailment and loss; (2) at this point a rebuttable presumption arises that bailee did not exercise due care and bailee is subjected to a procedural burden of coming forward with a showing or explanation of the loss consistent with freedom from negligence; (3) if such showing is made the bailor then has the burden of proof to establish specific negligence and proximate cause by preponderance of the evidence and at this juncture bailee can contend an Act of God caused the loss or that he was not negligent without having the burden of proof to disprove negligence or to establish his affirmative defense in order to escape liability; (4) if plaintiff fails to carry his burden and the issues are in equipoise, defendant prevails; (5) if plaintiff establishes negligence and proximate cause, defendant, in order to escape liability must then establish his affirmative defense and at this stage he does have the burden of proof to so establish it.

In support of this contention defendant asserts the court erred in not considering the second, third and fourth of these steps and in proceeding directly from step one to five. He argues although plaintiff did make a prima facie case by proving the bailment and damage, this does not mean any substantive burden of disproving negligence or establishing an affirmative defense devolved upon defendant. In further argument he emphasizes that only the purely procedural burden of 'going forward' with some explanation of the loss consistent with due care shifted to him. This showing, if made, rebuts any presumption of negligence and plaintiff must thereafter establish negligence and proximate cause by a preponderance as in the ordinary liability case since the substantive burden of proof never shifts.

Plaintiff on the other hand contends the court properly placed the burden of proof upon defendant in the first instance to support his affirmative defense that an Act of God was the proximate cause of plaintiff's damage and held that if the sole proximate cause of injury was an Act of God, plaintiff could not recover even though defendant's negligence was established; that when defendant had made a showing the sole proximate cause of plaintiff's injury and damage was an Act of God the burden of proof was then on plaintiff either to disprove the injuries were caused by an Act of God or to show defendant's want of care cooperated with the Act of God.

These contentions raise the question as to who has the burden of proof in a bailment case to show the Act of God was the sole proximate cause of plaintiff's damage.

In Wagaman v. Ryan, 258 Iowa 1352, 1361--1362, 142 N.W.2d 413, 418--419, a suit seeking recovery for personal injuries resulting from an automobile collision, we considered an instruction given by the trial court bearing...

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