Reserve Ins. Co. v. Staal

• Decision Date: 03 March 1977
• Citation: 277 Or. 439,560 P.2d 1082
• Parties: RESERVE INSURANCE COMPANY, Appellant, v. Samuel STAAL, Respondent.
• Court: Oregon Supreme Court

Page 1082

560 P.2d 1082

277 Or. 439

RESERVE INSURANCE COMPANY, Appellant, v. Samuel STAAL, Respondent.

Supreme Court of Oregon.

Argued and Submitted at Pendleton Oct. 25, 1976.

Decided March 3, 1977.

Frederick T. Smith, Portland, argued the cause for appellant. With him on the briefs were James C. Waggoner, and Martin, Bischoff, Templeton & Biggs, Portland.

Steven J. Joseph, La Grande, argued the cause for respondent. With him on the brief was Carey & Joseph, La Grande.

Before DENECKE, C.J., and O'CONNELL, ^* HOLMAN, TONGUE, HOWELL and BRYSON, JJ.

BRYSON, Justice.

Plaintiff brought this action as subrogee of Baker Aviation, Inc., to recover damages to its insured's aircraft. Defendant, a pilot and bailee for hire, crashed the plane on take-off at Ukiah, Oregon. Judgment was entered in favor of the defendant on the jury's verdict, and plaintiff appeals.

This case involves the legal duties of a bailor (plaintiff's insured) and its bailee for hire (defendant) and which of the two bears the loss for damages to the bailed aircraft. In Hines Lumber Co. v. Purvine Logging Co., 240 Or. 60, 63, 399 P.2d 893, 894 (1965), we stated:

'The plaintiff argues further that, even if the bailee is not to be held liable without fault, a doctrine akin to that of Res ipsa loquitur supplies the necessary inference of negligence and shifts to the bailee the duty of explaining the fire in a manner consistent with the exercise of due care on the part of the bailee. This question was probed in detail in National Fire Ins. Co. v. Mogan et al., 186 Or. 285, 291--293, 206 P.2d 963 (1949). We held that, after it had been shown that the goods had not been returned, the burden of going forward with the evidence shifted to the bailee. We also observed, in passing, that if the bailee could explain why the goods were not returned, as by showing that a fire occurred without fault on the bailee's part, such a showing would absolve the bailee from liability. We adhere to the views expressed in National Fire Ins. Co. v. Mogan et al.'

See also Liberty Mutual Fire Ins. v. Hubbard, 275 Or. 567, 551 P.2d 1288 (1976). Accord, McCormick on Evidence 808--09, § 343 (2d ed. 1972).

Defendant's affirmative defense alleges in part as follows:

'* * *

'II.

'On or about August 5, 1974, when the Defendant rented the aforesaid aircraft, from Baker Aviation, Inc., and at the time of delivery thereof, said aircraft was warranted as being in good condition and air worthy.

'III.

'At the time of Defendant's flight on or about August 5, 1974, said airplane was defective by reason that the aircraft had not, within the immediately preceding 12 calendar months, been approved for return to service following inspection performed in accordance with Part 43 of the Federal Aviation Regulations.

'IV.

'On or about August 5, 1974, the Defendant, while exercising reasonable and ordinary care, attempted a normal take-off from a airstrip.

'V.

'On or about August 5, 1974, at the time of Defendant's attempted takeoff, said airplane, by reason of its defective condition, did not deliver sufficient power to takeoff and as a proximate result of such lack of power said aircraft crashed.'

After both parties rested, plaintiff moved to stike the affirmative defense, stating:

'At this time the plaintiff would move the Court to withdraw the defendant's first affirmative defense from consideration by the jury on the ground that there is no evidence upon which reasonable men could conclude that there is a proximate casual (sic) relationship between the alleged failure to comply with the federal regulations in that it was either inspected as an annual inspection as distinguished from a hundred-hour inspection and that the same was not reported in the logbook.'

The court denied the motion, and plaintiff assigns this as error.

We view the evidence in the light most favorable to the defendant, the party aided by the verdict. Kuffel v. Reiser, 268 Or. 152, 155, 519 P.2d 365 (1974). We note that plaintiff's motion was to strike the entire affirmative defense but the argument of reason for doing so was directed only to paragraph III wherein it is alleged that the aircraft had not been inspected and approved for return to service in accordance with FAA regulations. The trial court raised this distinction, stating:

'THE COURT: Maybe the certification doesn't have any significance, but I'm wondering if the failure * * * to have the motor in proper working condition, that is, that the--they probably have got some--enough evidence to go to the jury on the basis that the airplane is warranted by mere act of bailment--that it was not powered sufficiently.'

The affirmative defense consisted of two defenses: failure to comply with the FAA regulations requiring that the plane be inspected, and the 'defective condition' and 'lack of power' of the aircraft. Under these circumstances, we conclude that, based on the plaintiff's motion, the court did not err in denying the motion to strike the entire affirmative defense as no objection was made to relevant parts thereof.

The facts show that the aircraft did not gain altitude by the time it reached the end of the runway and crashed into a fence. Defendant's theory and defense is that he, as bailee, used reasonable and due care but the plane was defective and did not have 'sufficient power to take off,' and therefore the accident occurred without fault on his part. To support this allegation in his affirmative defense, defendant offered the testimony of Mr. Dix and Mr. Mayes. Mr. Dix was a student flyer and Mr. Mayes was his instructor, using the plane here involved after it had been repaired and returned to service. They both testified that the plane had magneto trouble when they operated it on May 8, 1975, some nine months after the accident.

Mr. Dix testified:

'Q. And you first started taking lessons on May the 8th, 1975?

'A Yes.

'Q On the first day that you took a lesson did you experience any difficulty with the aircraft?

'(Plaintiff's counsel): Objection. It's irrelevant.'

Following an extended colloquy between the court and counsel, the plaintiff further objected to the testimony of Mr. Dix on the ground that any testimony regarding a defective motor on May 8, 1975, was too remote from the time of the accident to be of any probative value.

Mr. Mayes, the instructor, testified:

'Q * * * Mr. Mayes, on the first day that Mr. Dix flew in this particular aircraft did--were there any problems that developed during the run-up on the magnetos?

'A Yes, sir. On the first lesson we had we experienced a left mag run-up. It dropped approximately two hundred fifty rpm.'

We note from the transcript that there was no objection to this and other similar testimony on the part of Mr. Mayes regarding the improper operation of the aircraft motor, and appellant's brief does not set forth any objection.

We have generally held that evidence of actions and conditions remote in time and distance from the place of an accident are inadmissible. Ramp et al. v....