Todd v. Weikle

• Decision Date: 08 July 1977
• Docket Number: No. 845,845
• Citation: 36 Md.App. 663,376 A.2d 104
• Parties: Bertha TODD, Executrix of the Estate of Terrell G. Todd, et al. v. Kevin Dale WEIKLE, etc., et al.
• Court: Court of Special Appeals of Maryland

Page 663

36 Md.App. 663

376 A.2d 104

Bertha TODD, Executrix of the Estate of Terrell G. Todd, et al. v. Kevin Dale WEIKLE, etc., et al.

No. 845.

Court of Special Appeals of Maryland.

July 8, 1977.

Charles E. Iliff, Jr. and Donald L. DeVries, Jr., Baltimore, with whom were John H. Mudd and Semmes, Bowen & Semmes, Baltimore, on the brief, for appellants.

Philip O. Foard and Joseph L. Johnson, Towson, with whom were Stephen M. Hearne and White, Mindel, Clarke & Hill, Towson, on the brief, for appellees.

Argued before THOMPSON, MOORE and MELVIN, JJ.

MOORE, Judge.

In this wrongful death action arising out of the crash of a Cessna Skymaster into South Mountain near Burkittsville, in Frederick County, one of the primary issues is that of pilot identity, that is, who among the occupants was operating the aircraft at the time of the fatal crash when the plane was equipped with dual controls and there were no survivors or eyewitnesses.

Appellees, the surviving husband and 10 year old son of Antha Lea Weikle, recovered a judgment after a jury trial in the Circuit Court for Frederick County (Clapp, J., presiding) in the total aggregate sum of $235,000. ¹ Appellants, defendants below, are the executrix of the estate of Terrell G. Todd, and the owner of the aircraft, the Wilcox Manufacturing Company. The case had been submitted to the jury upon five separate issues. ² Appellants' motion for judgment n. o. v. was denied. On appeal they contend that there was no proof as the identity of the individual who was actually manipulating the controls of the aircraft at the time of the fatal crash and the trial court should have granted their motion for directed verdict.

In addition, appellants claim that the court committed prejudicial error (a) in allowing hearsay evidence that Mr. Todd did not file an instrument flight plan before takeoff; (b) in failing to instruct that Mr. Todd was entitled to the presumption of due care; and (c) in permitting the jury to find solatium damages on behalf of the minor child of the appellee's decedent.

We find that the surviving child was not entitled to solatium under the provisions of Maryland's Wrongful Death Act, Code, Cts. & Jud.Proc., § 3-901, et seq. (1974), and we set aside the jury's verdict for such damages in the amount of $40,000. We otherwise affirm.

I

Marshall Weikle, age 55, and his wife, Antha Lea Weikle, age 27, residents of Beckley, West Virginia, arose early on the morning of September 18, 1971 and left their home at 6:00 a. m. for the 15-minute drive to the Raleigh County (West Virginia) Memorial Airport. Mrs. Weikle, who had a student flying permit and who, according to her husband, had the "flying bug," had been invited to accompany Terrell G. Todd and Henry E. Brooks, president and sales manager, respectively, of the Wilcox Manufacturing Company, on a business trip to New Jersey in a private plane, a Cessna 337 Skymaster, owned by the company. The plane took off at 6:30 a. m. for the 3-hour flight to Teterboro Airport, near Newark. It was dark at that time and the weather was foggy and misty. ³

Mr. Todd occupied the front left seat and Mrs. Weikle the right. Mr. Brooks sat in back of them. Mr. Weikle testified that he was within 50 feet of the plane at takeoff and he could observe that Mr. Todd was flying it.

The aircraft was equipped with dual controls and could be operated from either of the front seats. The instruments, however, were located in front of the left seat. Mr. Todd was an experienced, licensed pilot with over 740 hours of flight time. Practically all his flight experience was under Visual Flight Rules (V.F.R.). His experience under bad weather conditions operating under Instrument Flight Rules (I.F.R.) was limited to some 3 hours and 30 minutes. Mrs. Weikle had logged 25 to 30 hours of pilot time as a student, all under visual flight conditions. She had flown before with Mr. Todd and had some 5 hours of instruction time in the Skymaster.

The plane was not heard from for about 31/2 hours. At approximately 10:00 a. m., a male voice from the aircraft contacted the Air Traffic Control (A.T.C.) at Dulles Airport in Virginia and made a request to file an instrument approach into the Martinsburg, West Virginia Airport. Upon this initial contact, according to the Dulles A.T.C. tapes played at trial, the Skymaster was about 6 miles northeast of the Martinsburg Airport V.O.R. (The V.O.R. is a radio signal transmitted from a point generally several miles distant from an airport. By locating it, the pilot can position himself for landing.)

For several minutes Dulles' air controller gave the small craft a series of instructions. The plane was instructed to descend to 3,000 feet altitude. As the Skymaster approached the V.O.R., its instructions were then to contact directly the Martinsburg Tower for permission to land. However, before it reached the V.O.R., Dulles lost all radio contact with the plane, which had apparently dropped below 3,000 feet and thus disappeared from the radar screen. No communication was ever established by the plane with the Martinsburg Tower.

The only known witness to the Cessna's tragic final minutes was Henry A. Conway, a retired sea captain residing in Rohrersville, Washington County, Maryland. Standing on his property, he observed the plane as it headed north. He testified that the cloud ceiling was about 400 feet and the plane's altitude was somewhere between 300 and 400 feet. Although the plane, in its original course, would have safely passed between Elk Ridge and South Mountain, two elevations forming Rohrersville Valley, it suddenly made a sharp 90 degree right turn, without banking, towards South Mountain. The witness then lost sight of the plane as it flew into a fog bank. Seconds later, he observed the explosion and heard the crash in which all three occupants were killed instantly.

According to Frederick Michael Fox, the investigator for the National Transportation Safety Board, the weather at the time of the crash was foggy and overcast with a 21/2 mile visibility. The accident occurred approximately 12 miles east of the Martinsburg Airport V.O.R. The elevation of South Mountain is 1700 feet. According to Mr. Fox, the path of the debris at the accident site indicated that the plane was flying level and under full power at the time of impact.

The appellees produced an expert witness, Ross C. Nye, to testify concerning the cause or causes of the disaster. Mr. Nye explained the "primary reason" for the crash as follows:

"(T)o get right to the accident itself which occurred some time after passing the Martinsburg VOR when the pilot was cleared for the approach and is cleared to make a descent to the field; when he accepts that clearance and makes that descent to the field he has essentially two options. One, he can either effect the approach and complete it to a landing or two, he can miss the approach and follow the prescribed missed approach procedure which is climbing left and turn back to the VOR and hold. He obviously didn't make the landing and he obviously didn't make the missed approach because he was twelve miles northeast or correction, east of the VOR at an altitude well below the published missed approach procedure altitude."

As the "secondary reason," he stated:

"I think the whole flight by itself is a cause of the accident in that I think the takeoff was effected under dangerous conditions for the type of flight that was contemplated . . .."

Appellants offered no testimony. Their evidence consisted of stipulations with respect to actuarial computations on the issue of damages.

On this appeal, no substantive issue is raised with respect to the existence of negligence. Appellants admit that the sharp turn of the Skymaster at a 90 degree angle directly towards South Mountain was the act which resulted in the crash. Their principal contention, however, is that whether Mr. Todd was handling the controls at the time of the fateful turn was a matter of speculation and not a jury question. For the reasons next stated, we disagree.

II

The standard of proof necessary to establish pilot identity in a dual control aircraft has not previously arisen in Maryland, but it has confronted courts in other jurisdictions. See, e. g., Udseth v. United States, 530 F.2d 860 (10th Cir. 1976); Boise Payette Lumber Co. v. Larsen, 214 F.2d 373 (9th Cir. 1954); Insurance Company of North America v. Butte Aero Sales & Service, 243 F.Supp. 276 (D.Mont.1965); In re Hayden's Estate, 174 Kan. 140, 254 P.2d 813 (1953); Drahmann's Administratrix v. Brink's Administratrix, 290 S.W.2d 449 (Ky.1956); Michigan Aero Club v. Shelley, 283 Mich. 401, 278 N.W. 121 (1938); Lange v. Nelson-Ryan Flight Service, Inc., 259 Minn. 460, 108 N.W.2d 428 (1961); Mitchell v. Eyre, 190 Neb. 182, 206 N.W.2d 839 (1973); Budgett v. Soo Sky Ways, 64 S.D. 243, 266 N.W. 253 (1936); Towle v. Phillips, 180 Tenn. 121, 172 S.W.2d 806 (1943); Hall v. Payne, 189 Va. 140, 52 S.E.2d 76 (1949). See Annot., 36 A.L.R.2d 1290 (1954); Sales, Dual Control Aircraft Accidents, 42 Ins.Coun.J. 582 (1975); Note, Res Ipsa Loquitur in Small Aircraft Litigation, 41 J. Air L. and Com. 103 (1975).

In our review of the decided cases, we perceive two extreme positions. On the one hand, there is a line of authority which demonstrates for all practical purposes a judicial unwillingness to submit the issue of pilot identity to a jury based upon circumstantial evidence. See, e. g., Udseth v. United States, supra ; Morrison v. LeTourneau Company of Georgia, 138 F.2d 339 (5th Cir. 1943); In Re Hayden's Estate, supra ; Michigan Aero Club v. Shelley, supra ; Mitchell v. Eyre, supra. The other extreme is the Minnesota rule or the "pilot in command" doctrine, as that term is defined in the Federal Air Regulations, ⁴ which holds that the pilot in command is responsible for the negligent act, irrespective of whether or not he is in actual operation of the controls at the time of the fatal...