Portland Flying Service, Inc. v. Smith

• Decision Date: 15 March 1967
• Citation: 227 A.2d 446
• Parties: PORTLAND FLYING SERVICE, INC. v. Maynard B. SMITH.
• Court: Maine Supreme Court

Page 446

227 A.2d 446

PORTLAND FLYING SERVICE, INC. v. Maynard B. SMITH.

Supreme Judicial Court of Maine.

March 15, 1967.

Berman, Berman, Wernick & Flaherty, by Theodore H. Kurtz, Portland, for plaintiff.

Mahoney, Desmond, Robinson & Mahoney, by Lawrence P. Mahoney, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, RUDMAN, and DUFRESNE, JJ.

WEBBER, Justice.

The plaintiff was owner of a small airplane which was hired by the defendant, a student pilot who was receiving instruction from an instructor employed by plaintiff. While under the control of the defendant the plane was involved in an accident for which property damages are sought in this action. Plaintiff appeals from the direction of a verdict for the defendant.

The facts are not in dispute and may be related as follows. Prior to the day of the accident the defendant had had about twenty hours of flying experience, involving both 'dual' operation in company with his instructor and 'solo' flying. His practice flying had been done at 'Port of Maine', a small airport having a single runway of turf and dirt which was 'subject to soft spots in the spring when frost is coming out of the ground.' According to his instructor, his training was at the stage at which 'he was up to the point of leaving the traffic pattern, branching out, going beyond the local pattern, in other words, he was about to spread his wings. * * * He was qualified to fly solo within a restricted area * * * not indiscriminately.' On the day in question the defendant, accompanied by his instructor, successfully accomplished two 'touch and go' landings by which is meant, at the name suggests, making a normal landing and then by applying the power making an immediate takeoff, thus avoiding the waste of time involved in taxiing back for a long takeoff run. After this practice, the instructor permitted the defendant to fly 'solo', suggesting that he familiarize himself 'with the condition and the wind at that time, * * * leave the pattern, fly away from the field, climb in altitude above the traffic pattern, which is up to 2,000 feet, and go away from the field and break up the monotony of the traffic pattern and get the advantage of solo.' (Emphasis supplied). Pursuant to this permission and these instructions the defendant flew over a location known as Stovers Field in Pownal which had a short sod or grass runway and was identifiable as a landing field by the presence of a hangar and 'wind-sock'. The defendant made passes over the field and observed it from the air. He observed the landing surface and surroundings. He saw a gulley which he concluded would provide 'excellent drainage' there. The field 'appeared to (him) to be all right to make a touch and go landing.' He then brought his plane in to land and in fact did successfully land the two wheels under the wings. The plane then proceeded forward on the runway in this manner. When he set the nose wheel down or after he had done so, the 'plane nosed over.' The evidence offers no further explanation of the fact that the 'plane nosed over' but counsel on both sides proceeded on the assumption, as did the justice below, that the plane encountered a 'soft spot' in the runway. In discussion of the defendant's motion for a directed verdict, counsel for defendant stated in part: 'There is no evidence that he knew or should have known that there was a soft spot on Stover (field) which, on all the evidence, was the only cause of the accident which resulted.' (Emphasis ours) And the plaintiff's counsel, likewise, stated: 'What happened was definitely his foreseeable risk and because of what happened, an accident where he hit a soft spot in the runway, was exactly one of the reasons why it was imprudent for him to attempt a landing on the field with which he was as a student pilot totally unfamiliar.' (Emphasis ours) In summation of the evidence preliminary to his decision upon the motion, the court included the following: 'He struck a soft spot in the runway and nosed over.' (Emphasis ours) In short, the plaintiff cannot now complain if the motion was disposed of on the factual theory accepted by all concerned that the only possible inference to be drawn from the evidence was that the presence of such a 'soft spot' caused the accident.

We find totally lacking any evidence of negligence on the part of the defendant. We are not dealing with any contention that the defendant had exceeded the scope of his permitted use of the plane. He had been authorized and directed to leave the pattern and practice 'solo' flying. He had completed about 10 to 12 hours of solo flying which necessarily involved numerous practice landings. He had not been directed not to attempt such landings on any field other than 'Port of Maine'. He had had experience as recently as the same day in making such landings on a sod or grass runway and had neither encountered nor observed any 'soft spots'. There is no evidence that the 'soft spot' which it is agreed caused this accident was visible to or should have been observed by the pilot, or in fact that the runway presented any appearance other than that of a firm and supportive surface. There is nothing to suggest that this particular accident could or would not have as readily occurred if the defendant had been an experienced pilot in the exercise of due care. Nor is there anything to suggest that the defendant's 'touch and go' landing was not made carefully or properly or that it would not have been entirely successful if it had not been for the presence of a concealed and unforeseeable hazard. In short, the evidence discloses no lack of ordinary care in the operation of this plane. It was exactly upon this theory of the law as applied to this posture of the evidence that the justice below directed a verdict for the defendant.

The learned counsel for the plaintiff, however, now and for the first time advances a very different theory. He points out that the plaintiff, having shown a bailment and a return of the plane to the owner in damaged condition, was entitled to the aid of a presumption that the defendant bailee was negligent. For this proposition he properly relies on Northeast Aviation Co. v. Rozzi (1949) 144 Me. 47, 64 A.2d 26. He then argues that under the doctrine of Hinds v. John Hancock Mutual Life Ins. Co. (1959) 155 Me. 349, 364, 155 A.2d 721, 730, 85 A.L.R.2d 703 as to the use of rebuttable presumptions, the plaintiff was entitled to a jury determination as to the credibility of the explanation offered by the defendant. He contends that if the defendant's account of the factual events did not satisfy the jury that the non-existence of facts pointing to negligence was as probable as their existence, the presumption would not disappear but would persist and justify a verdict for the plaintiff. This would certainly be true under ordinary circumstances but we are satisfied that the theory upon which this case was tried and presented to the court below upon consideration of the motion for directed verdict precludes such a result.

As already noted this new rationale for reaching jury determination was never submitted or even suggested to the court below. The 'presumption' theory appears to be an afterthought as it was not even included in the plaintiff's main brief. It first appeared in plaintiff's reply brief which is designed for rebuttal-and it was advanced in oral argument before this court. We think the argument now presented stands in conflict with the entire theory relied upon below and upon which the presiding justice based his consideration and determination. Under these circumstances it must be treated as having been waived.

Even if this were not so, however, the theory would not be tenable under the peculiar circumstances of this case. The plaintiff having proved the bailment and the return of damaged personal property did not see fit to rest and rely on his presumption but elected to go forward with evidence by calling the defendant as his witness. In doing so the plaintiff clearly intended to elicit facts which would prove negligence and he intended that a truthful account of the events leading to the accident, if he was successful in obtaining such an account from the defendant, should be accepted and believed by the factfinder. It is not uncommon for a party to supply evidence of an essential part of his case by calling the opposite party as the best or only available source of information. For example, this is frequently the means employed by a plaintiff who must prove agency. In calling the opposite party as his witness, the plaintiff was protected against the risks inherent in hostility and interest in the outcome by the provisions of Rule 43(b). The Rule afforded him the right of cross-examination and of impeachment and contradiction. In the instant case, however, the plaintiff elicited without difficulty from the defendant a version of the facts which was patently plaintiff's own. Proceeding, as was his right, by means of leading questions, he was able to introduce the following evidence:

'Q. (by Mr. Kurtz) What part of your airplane first touched ground?

A. (by defendant) My two front wheels, or the two wheels that would be directly under the wings.

Q. Isn't it so you rolled along the ground for a distance on those two wheels?

A. Yes.

Q. And isn't it so that you set your nose wheel down on the ground after having run along on two wheels for a while?

A. Yes.

Q. Isn't it so when you did that, your plane nosed over?

A. Yes.

Q. Isn't it so while you were rolling along running, there was nothing obstructing your view of the runway immediately in front of the plane, that is, no part of your plane obstructed the view of the runway directly in front of the plane?

A. That's right.'

The plaintiff made no effort to impeach or discredit the defendant as a witness, nor was there any occasion to make such an attempt since the defendant had done no more than accept and...