Neel v. Henne

• Decision Date: 05 March 1948
• Docket Number: 30260.
• Citation: Neel v. Henne, 190 P.2d 775, 30 Wn.2d 24 (Wash. 1948)
• Parties: NEEL v. HENNE et al.
• Court: Washington Supreme Court

190 P.2d 775

30 Wn.2d 24

NEEL v. HENNE et al.

No. 30260.

Supreme Court of Washington

March 5, 1948

Department 2

Action by W. F. Neel against Herbert Henne and wife to recover for damage to plaintiff's airplane as result of a crash allegedly due to negligence of Herbert Henne.From a judgment for the plaintiff, the defendants appeal.

Judgment reversed and cause remanded with instructions to dismiss the action.

Appeal from Superior Court, Benton County; Timothy A. Paul, Judge.

Horrigan & Leavy, of Pasco, for appellants.

Moulton & Powell and Thomas B. Gess, all of Kennewick, for respondent.

JEFFERS Justice.

This action was instituted by W. F. Neel against Herbert Henne and wife, to recover for damage to plaintiff's airplane resulting from a crash alleged to be due to the negligence of defendantHerbert Henne.

In his complaint plaintiff alleged that he was the owner of a 1936 Cessna airplane, No. NC14460; that the airplane was, by a written lease dated January 22, 1946, leased to defendantHerbert Henne, as lessee, acting in behalf of himself and the community consisting of the defendants.

It was further alleged that plaintiff had complied in every respect with the terms and conditions of the lease, and that on April 2, 1946, the airplant was in good condition and was in the possession of defendantHerbert Henne; that due to Henne's negligence, the airplane was damaged and diminished in value.In paragraph 5 of the complaint it was alleged that the negligence of the defendant consisted more particularly in this:

'(3) That he endeavored to fly said airplane without being properly qualified so to do.

'(b) That he took the plane off the ground and into the air without properly testing the same.

'(c) That due to his lack of skill and training in the operation of the plane he caused it to crash to the ground.

'(d) That although defendant knew that he was required to check out as a pilot property trained in the use of the controls in the type of airplane above described, he nevertheless attempted to fly the same without having passed the tests provided for a pilot of such airplane.

'(e) That although the defendant represented himself as a skillful airplane pilot he endeavored to fly said airplane in such a manner as to turn it while too close to the ground and caused the same to side-slip and crash.'

In answer to a motion by defendant that the complaint be made definite and certain, or in the event such motion were denied that plaintiff be required to furnish a bill of particulars plaintiff submitted the following bill of particulars:

'That the test referred to in paragraph V(d) of plaintiff's complaint refers to a test for proficiency in the flight of certain types of airplanes, including the airplane involved in this case, and that under the rules and regulations of the Civil Aeronautics Board, it is necessary Before a person is approved as a pilot of a certain plane that he be pronounced proficient by an instructor holding an instructor's license, and that the defendant, Herbert Henne, did not have the statement of proficiency by an instructor Before he endeavored to fly the plane of the plaintiff.'

By their answer defendants admitted that they were husband and wife, and admitted that plaintiff leased the airplane to defendantHerbert Henne, as alleged in paragraph 3 of the complaint, but denied all the other allegations of the complaint.

The cause came on for trial Before the court and jury on December 9, 1946, and thereafter, on December 10, 1946, the jury returned a verdict in favor of plaintiff in the sum of four thousand dollars.

Defendants timely interposed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial.Such motions were denied on April 22, 1947, and on the same day judgment was entered on the verdict.Defendants have appealed.

The assignments of error are (1) in denying appellants' motion for a nonsuit; (2) in denying appellants' challenge to the sufficiency of the evidence; (3) in giving instructions numbered 1, 3, 4 and 6; (4) in entering judgment on the verdict; (5) in denying appellants' motion for new trial and (6) in denying appellants' motion for judgment notwithstanding the verdict.

Herbert Henne will be hereinafter referred to as though he were the sole appellant.

This action arose out of an airplane accident which occurred at an airfield located at Kennewick, Washington, on the afternoon of April 2, 1946.The airfield, constructed and operated by appellant, has a three thousand foot runway, a large hangar, and an administration building.About three or four hundred yards beyond the southwest end of the field, and at right angles to the runway, which runs in a northeasterly-southwesterly direction, are power lines about forty feet from the ground.

On January 22, 1946, respondent leased his airplane to appellant, under a written lease which provided that the lessee would be responsible for the upkeep, maintenance, check-up and certification of condition of the airplane at all times, and that all expense so incurred would be paid by the lessor, Neel.The lease also contained the following provision:

'Upon termination of the contract herein lessee will surrender possession of the property to lessor in as good condition as the same is now in, or shall be put in hereafter, ordinary wear and damage by the elements excepted, provided that lessee shall not be liable to lessor in any manner for accidental damage to or destruction of said property while being used for the purposes for which this lease is given unless such damage or destruction shall result from negligence on the part of lessee or his agents, employees or representatives.'(Italics ours.)

Between January 22, 1946, and April 1, 1946, the plane's engine cut out and missed on occasions, and would lose R. P. M.'s, indicating some defect in the motor.

It should be noted here that the lease also provided that the lessor should have the right to use the airplane on his own account when not in use or not definitely scheduled for use by lessee.

Respondent, on two different occasions during the period above mentioned, took the airplane to Walla Walla and attempted to have the engine defects remedied.The motor trouble continued, and on or about April 1, 1946, two mechanics, D. T. Magee and A. W. Heinie, were employed to work on the engine, upon the condition that Mr. Neel would pay them if they were able to find and remedy the trouble.Mr. Magee testified as follows relative to what they found to be the trouble and what they did to remedy it:

'A.The whole cause of the trouble was a bare wire in the ignition switch and the airplane would operate all right until it reached full RPM and then vibration would set up and this wire would vibrate over and touch the side of the switch and ground out the mag exactly as if you turn the switch off.Then your RPM would fall back to about 1600 and vibration would smooth out allowing the wire to drop back to its original position and cut the switch back on and turn on the engine.Q.What did you do to fix it?A.Wrapped the wire with tape.Q.After that was there any difficulty?A.No, sir.Gave the plane an extensive ground test and it run just fine.'

The above work was completed about two P.M. on April 2nd, and appellant was there for the final check.He stated that he would give it a test, whereupon he climbed into the plane and taxied out to the end of the runway, where he stopped and ran up the engine three or four times Before he taxied into a take-off position for a test flight.Appellant testified that he gave it every cockpit check, and everything seemed to work well just Before he took off.

No one actually saw appellant make the cockpit check, as the nearest observers were the mechanics, Magee and Heinie, flight instructor Lampson, the office girl, Dorothy Knifong, and several others who watched all or part of appellant's take-off.The witnesses heard appellant run the motor up two or three times.

We think the accident can best be described in appellant's own words, and in the words of witnesses on the ground.Appellant, on direct examination, testified: 'I did all my own testing on all my planes so it was after lunch, Magee said they had found the trouble in the plane and they thought they had it fixed.It checked out perfect on the ground so I got in and checked it over with them.It seemed to work fine, went down the end of the runway, checked it through, gave it every cockpit check and when I was all ready to go I started down the runway, gave it full power and took off.Just after it took off it seemed to lose power all of a sudden.I looked down and the tachometer needle was jumping back and forth and as I noticed that, the motor conked out.I put the nose down to keep it from stalling out, saw I was getting near the end of the runway and would glide into the power lines.I cut the switch and tried to side-slip it to the ground, cross controlling the elevators and control which will make you lose speed fast and hoped I could get her down to the ground.That plane has a tendency to float more than any other plane.I saw I was going to go right in the power lines, tried to turn it to keep it from going and it crashed.'

Neil F. Lampson flight instructor at the field, was standing about half-way down the runway near the hangar, and watched the plane take off.He stated:

'The plane left the runway, usually just about half the runway left to a normal take off position, leveled out, pick up speed at an altitude of ten to fifteen feet of the runway all of a sudden the RPM just dropped back, the airplane started to glide about that time, two-thirds of the runway, fifteen, twenty, possibly twenty-five feet, and...