Segura v. U.S. Aircraft Ins. Group

• Citation: 246 So.2d 880
• Decision Date: 18 November 1970
• Docket Number: No. 3218,3218
• Parties: Perry J. SEGURA, Plaintiff-Appellee, v. UNITED STATES AIRCRAFT INSURANCE GROUP, Defendant-Appellant.
• Court: Court of Appeal of Louisiana (US)

Page 880

246 So.2d 880

Perry J. SEGURA, Plaintiff-Appellee, v. UNITED STATES AIRCRAFT INSURANCE GROUP, Defendant-Appellant.

No. 3218.

Court of Appeal of louisiana, Third Circuit.

Nov. 18, 1970.

On Rehearing March 10, 1971.

Rehearing Denied March 31, 1971.

Writ Refused May 20, 1971.

Deutsch, Kerrigan & Stiles by Francis G. Weller, New Orleans, for defendant-appellant.

Johnson & Woods by Robert E. Johnson and L. Hallman Woods, Jr., New Iberia, for plaintiff-appellee.

Before FRUGE , SAVOY, and HOOD, JJ.

FRUGE , Judge.

The plaintiff, Perry J. Segura, brought this action to recover a money judgment for damage sustained to his twin-engine Piper airplane. The suit was brought against the defendant, United States Aircraft Insurance Group, the liability insurer of Pelican Aviation Corporation. Pelican is a fixed-base operator who stored and serviced plaintiff's airplane at facilities which Pelican leased at the New Iberia Airport. Defendant, United States Aircraft Insurance Group, filed a third-party demand against Harold Landry. After a trial on the merits, the district court entered judgment in favor of the plaintiff. Judgment was also entered in favor of U.S.A.I.G. on its third-party demand against Harold Landry. Defendant appeals suspensively from that part of the judgment decreeing defendant to be liable to plaintiff. In addition, plaintiff in answer to this appeal prays that the award of the trial court be increased to include an element of damages denied by the district court.

The plaintiff, pursuant to a verbal agreement with Pelican Aviation, had for some time stored his aircraft at the Pelican Aviation hangar located at the New Iberia Airport. Pelican Aviation undertook to store and service the plaintiff's aircraft, for which services Pelican was compensated by the plaintiff.

On February 12, 1967, pursuant to Segura's instructions, employees of Pelican Aviation removed Segura's aircraft from the Pelican hangar, prepared it for use later in the day, and left the plane outside on the concrete apron adjacent to Pelican's hangar. Later that same afternoon, Harold Landry, a twenty-year-old minor emancipated by marriage, drove his automobile across the concrete apron adjacent to the hangar on his way to a drag race which was being conducted on a nearby abandoned runway at the airfield. The appearance of a State Police officer at the airport caused both participants and spectators to begin leaving the drag race, as they knew they had no permission to be drag racing on the airport property. Landry returned from the direction of the dragstrip, again driving across the concrete apron adjacent to the hangar. It appears that some others also used Pelican's premises while leaving the scene of the aborted drag race. Landry negligently drove his automobile into a wing of the airplane, which collision severed the wing tank and broke off part of the end of the wing.

The plaintiff contends that Pelican Aviation, having had full custody, care, and control of the aircraft, was negligent in allowing automobile traffic to traverse the concrete apron near and around where the airplanes were kept. Plaintiff further alleges that there existed a depositary relationship between plaintiff and Pelican Aviation and that Pelican Aviation as a compensated depositary violated the standard of care required of a depositary by Article 2937 of the Louisiana Civil Code.

The record reveals that during the afternoon of the accident and on previous occasions, automobiles had used the apron on Pelican's property as a means of ingress and egress to other facilities located at the New Iberia airfield. It is plaintiff's contention that when Pelican failed to take steps to prohibit this use by automobile and other vehicular traffic on the apron adjacent to the hangar, Pelican breached a legal duty owed to the owner, and this breach was the proximate cause of the accident.

The trial court found:

'* * * that Pelican Aviation Corporation, by virtue of its agreement to store, service and repair plaintiff's aircraft, for which it was paid a monthly fixed fee, plus payment for fuel and other services, became a compensated depositary or bailee for plaintiff's aircraft, and as such was 'bound to use the same diligence in preserving the deposit that he uses in preserving his own property' (R.C.C. Art. 2937).' Tr. 153.

We agree with the trial judge that a depositary relationship existed between the plaintiff-appellee and Pelican Aviation Corporation. It is evident that, pursuant to a verbal contract between Pelican and Segura, Segura left and stored his airplane with Pelican, for which services Pelican was compensated by the plaintiff . Pelican thereby became a compensated depositary or bailee. Under Article 2937 of the Louisiana Civil Code, 'the depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.' Under Article 2938 of the Louisiana Civil Code, the responsibility set out by Article 2937 is to be strictly construed in the case of a compensated bailee.

The question, then, before this court is whether or not there was a negligent failure on the part of Pelican in the legal duties owed to Segura.

The record indicates that Pelican Aviation, under a lease agreement with the New Iberia Airport Authority, has control and use of a small area of the New Iberia airfield. There are other facilities, operations, and activities at the airfield over which Pelican does not exercise control. There was contradictory testimony as to whether or not Pelican Aviation took steps prohibit the use of the concrete apron near its hangar, by vehicular and other traffic, going to and from other facilities on the airfield.

It is a well settled jurisprudential rule in this state that where the plaintiff shows the existence of a contract of deposit, and then shows that damage or loss was sustained to the deposit, the burden of proof then shifts to the depositary to show that the loss was not occasioned by any negligence on his part. Paterno v. Kennedy The Cleaner, 18 La.App. 649, 138 So. 531 (1931); Jacques v. City Parking Service, 97 So.2d 78 (Orl.App.1957); Indiana Lumbermen's Mutual Insurance Co. v. Humble Oil & Refining Co., 170 So.2d 264 (La.App.2d Cir. 1965); Neeley v. Tamburello, 187 So.2d 526 (La.App.4th Cir. 1966); Taylor v. Haik, 208 So.2d 433, 434 (La.App.4th Cir. 1968).

The trial judge found that there was little evidence to indicate that Pelican Aviation had done anything to protect or safeguard airplanes parked on the apron, in spite of its prior knowledge that vehicular traffic from time to time used the apron in going to and from other facilities located at the airport. It is axiomatic that this finding of fact by the trial court ought not to be disturbed on appeal, unless it can be said that such finding amounted to manifest error.

In the instant case, the defendant-appellant has failed to show that its insured took any effective steps to stop people from driving across the apron adjacent to its hangar in order to get to and from other facilities at the New Iberia Airport.

Defendant urges that it is irrelevant that Pelican failed to place barricades or barriers near its hangar and apron, because Landry was coming from the direction of the central area of the airfield, and since barriers could only have stopped traffic from coming of the outside road onto the apron and not traffic already on the airfield. The record reveals, however, that Landry drove across the Polican facility near parked aircraft when entering the airfield, following other automobiles which entered by the same route. He stopped and asked directions from an employee of Pelican, and was not told that Pelican forbade the use of its apron by automobiles. Once Landry used this route to enter the airfield, it would not be improbable to expect that he would return by the same route, and it would not be unforeseeable that an accident would result causing damage to one or more of the aircraft entrusted to Pelican.

While the defendant poses several arguments relating to interpretation of the liability insurance policy issued to Pelican, nonetheless defendant concedes that coverage is provided if it is found that Pelican failed in a legal duty owed the plaintiff. We hold that the accident and damage in question resulted from such a failure in the legal duty owed by defendant's insured to the plaintiff.

The other question posed for our consideration in the instant case involves the proper determination of the appropriate award of damages by the trial judge.

Plaintiff purchased his twin-engine Piper aircraft on December 28, 1966, for $59,190. It was damaged on February 12, 1967. At this time, it had only 62 hours of flying time on it. Segura paid $2,028 .08 to have the aircraft repaired. The cost of the repairs is not contested.

In addition to the amount paid for repairs, plaintiff claims damages for the depreciated value of his aircraft as a result of the accident. We find no error in the trial judge's determination as to this element of damages, and adopt his award thereof and his reasons therefor:

'Plaintiff has proven to the satisfaction of the court that his aircraft has depreciated in value as a result of the accident. Mr. Paul Fournet (Tr. 150) and Mr. Reggie Griffith (Tr. 179) (both men of long experience in the aircraft business), testified that this aircraft, and indeed any aircraft which sustains serious damage, is compromised structurally and is thereafter considerably depreciated. They testified that a prospective purchaser who was aware that the plane had been damaged would be reluctant to purchase it, or only at a reduced price. And, further, anyone who was interested in purchasing such an aircraft would, by the simple...