Tompkins v. Northwestern Union Trust Co. of Helena

• Decision Date: 11 May 1982
• Docket Number: Nos. 81-403,81-404,s. 81-403
• Citation: 198 Mont. 170,645 P.2d 402,39 St.Rep. 845
• Court: Montana Supreme Court
• Parties: , 25 A.L.R.4th 1220 E. Allen TOMPKINS and Myrtle Tompkins, heirs of Hillary Tompkins, deceased, Plaintiffs and Appellants, v. NORTHWESTERN UNION TRUST COMPANY OF HELENA, Montana, et al., Defendants and Respondents. James V. SMITH and Rosena A. Smith, heirs of Larry B. Smith, deceased, Plaintiffs and Appellants, v. NORTHWESTERN UNION TRUST COMPANY OF HELENA, Montana, et al., Defendants and Respondents.

Page 402

645 P.2d 402

198 Mont. 170, 25 A.L.R.4th 1220

E. Allen TOMPKINS and Myrtle Tompkins, heirs of Hillary

Tompkins, deceased, Plaintiffs and Appellants, v. NORTHWESTERN UNION TRUST COMPANY OF HELENA, Montana, et al.,

Defendants and Respondents.

James V. SMITH and Rosena A. Smith, heirs of Larry B. Smith, deceased, Plaintiffs and Appellants, v. NORTHWESTERN UNION TRUST COMPANY OF HELENA, Montana, et al.,

Defendants and Respondents.

Nos. 81-403, 81-404.

Supreme Court of Montana.

Submitted Feb. 23, 1982.

Decided May 11, 1982.

C. W. Leaphart, Jr. argued and W. W. Leaphart argued, Helena, for plaintiffs and appellants.

Recht & Greef, Hamilton, John D. Greef argued, Hamilton, Kline & Niklas, Helena, for defendants and respondents.

MORRISON, Justice.

Plaintiffs appeal from judgment entered for defendant and the denial of a new trial motion. This is a negligence action for wrongful death, brought in the First Judicial District Court, Lewis and Clark County. We reverse and remand for a new trial.

The action arises out of an airplane crash in which all aboard were killed. On September 19, 1978, pilot Herschel Dean Moore, III, left Missoula bound for Bozeman at 3:30 P.M. Moore had three passengers in a Piper Archer II rented from Executive Aviation in Missoula. Six miles west of Hall, Montana, near 4:00 o'clock P.M., the plane crashed into a hill at 5,500 feet. The accident site was approximately 15 miles southwest of Drummond, Montana.

Pilot Moore, a University of Montana student, had obtained his pilot's license a month prior to the crash. He had 71 hours total flying time, including 23 hours solo time. He was not instrument rated, but was described as an excellent student pilot by his flight instructor.

Pilot Moore obtained a weather briefing at 1:30 P.M., but did not receive a briefing immediately prior to departure at 3:30 P.M. According to the meteorologist who testified the weather improved slightly over Drummond between 1:30 P.M. and 3:45 P.M.; there was a ceiling of broken clouds which had lifted from 3,500 to 4,000 feet; the wind at 1:30 P.M. was 22 miles per hour; the visibility remained at 12 miles throughout; there was a precipitation area 15 to 20 miles southwest of Drummond. The weather in Bozeman had deteriorated to Instrument Flight Rules by 4:30 P.M.

Plaintiffs' position was two-fold. First, plaintiffs relied upon the legal theory of res ipsa loquitur to establish liability. Secondly, plaintiffs alleged that the pilot, being inexperienced, had negligently flown into cloudy, squally, weather which caused him to become disoriented and to lose control of the aircraft. Plaintiffs' expert witness testified that the aircraft went into a descending spiral, overstressing the wings and tail, and causing the aircraft to come apart.

Defendant countered with expert testimony which contradicted the "descending spiral" theory espoused by the plaintiffs' expert. Defendant's expert witness testified that, because debris was found along an almost straight line over 2,000 feet in length, the aircraft could not have been spiraling down. Defendant's experts testified that the left wing flap of the aircraft came off before the crash and that this detached flap struck and broke the tail assembly which controlled vertical direction. Defendant's proof attributed the cause of the accident to this equipment failure.

The trial court submitted the case to the jury, omitting plaintiffs' theory of res ipsa loquitur from the jury instructions. Defendant contended at the trial court level, and here contends, that res ipsa loquitur is inapplicable because defendant's experts testified to a cause of the crash which negated any presumption of negligence. The trial court agreed.

The jury returned a verdict for defendant on the negligence issues. Judgment was entered accordingly and plaintiffs appeal.

Plaintiffs raise the following errors:

(1) The jury verdict for defendant was contrary to the weight of the evidence and the law.

(2) The District Court erred in allowing defense experts to testify regarding defective equipment since such defense was not raised in the pleadings.

(3) The District Court erred by allowing the defense to inject the issue of strict liability into a negligence case.

(4) The District Court erred in not submitting res ipsa loquitur to the jury.

We affirm the District Court's rulings on issues 1, 2, and 3, but reverse on issue 4.

SUFFICIENCY OF THE EVIDENCE

Plaintiffs contend that the jury's verdict is contrary to the evidence and to the law. Defendant produced expert testimony which negated plaintiffs' theory of how the accident occurred. Plaintiffs' expert witness testified that the aircraft came apart because it went into a descending spiral. Plaintiffs' proof sought to establish that the descending spiral resulted from an inexperienced pilot becoming disoriented in unfavorable weather conditions. Defendant's proof was designed to show such a theory to be ill-founded since debris was scattered in a straight line over a distance of some 2,000 feet. There was clearly a conflict in theories and proof which required submission of the issue to a jury. Gunnels v. Hoyt and Balsam (1981), 38 St.Rep. 1492, 633 P.2d 1187. There is sufficient support in the record to uphold a jury verdict in favor of either the plaintiffs or the defendant. Therefore, we reject plaintiffs' first contention.

Plaintiffs contend in issue 2 that the District Court erred in allowing proof of a defense not raised in the pleadings. Issue 3 concerns alleged District Court error in allowing injection of strict liability theories. These issues are intertwined and we treat them together.

Defendant's answer denied that pilot negligence was the cause of this crash. Pursuant to this allegation, defendant was entitled to offer proof establishing another cause for the accident. The expert testimony offered by defendant, which sought to establish equipment failure as the cause of the accident, negated plaintiffs' allegation that the decedent pilot became disoriented and put the aircraft into a descending spiral.

Rule 8(c), M.R.Civ.P., does not require the negligence or conduct of third parties to be pleaded as an affirmative defense. See also Graham v. Rolandson (1967), 150 Mont. 270, 435 P.2d 263, where this Court held unavoidable accident did have to be pleaded affirmatively.

Strict liability theories were not involved. Defendant simply offered equipment failure as the cause of the accident. The District Court was clearly right in permitting such proof.

The District Court's failure to give a res ipsa instruction in this case is the dispositive issue on appeal. Defendant relies upon two legal principles and primarily two cases in support of opposition to a res ipsa instruction. First, defendant contended at the trial court level and contends here, that the decedent pilot did not have the requisite degree of control required for application of the res ipsa doctrine. Defendant relies upon Campbell v. First National Bank (D.N.M.1973), 370 F.Supp. 1096. Defendant also alleges that where proof is offered explaining the cause of the accident in such a way that plaintiffs' allegations are refuted, res ipsa loquitur is not available to the plaintiffs. Defendant relies upon Mets v. Granrud (1980), Mont., 37 St.Rep. 313, 314-315, 606 P.2d 1384, 1386.

In Campbell, the Federal District Court held that, where the pilot rented an aircraft from an agency the morning before it crashed, "the conclusion is inescapable that the requisite control over the airplane, in its mechanical as well as directional aspects, has not been sufficiently demonstrated to permit the doctrine of res ipsa loquitur to apply." (370 F.Supp. at 1099.) Plaintiffs here attempt to distinguish the Campbell decision on the basis that the evidence in this case showed recent and careful maintenance whereas no such evidence existed in Campbell. This case can be distinguished on an evidentiary basis but we find such a determination to not be dispositive here. We think the Campbell decision to be too narrow in its application of res ipsa and we are drawn to the broader interpretation found in Stoddard v. Ling-Temco-Vought, Inc. (C.D.Cal.1980), 513 F.Supp. 314.

Stoddard involved 14 consolidated wrongful death actions arising out of an aircraft crash which occurred when a U.S. Air Force C-135B aircraft crashed into the Pacific Ocean. Defendant Ling-Temco-Vought, Inc. had made structural changes to the body of the aircraft and the crash resulted shortly thereafter. Plaintiff alleged faulty design, construction, inspection and testing of the aircraft by both the United States and Ling-Temco-Vought contractors during and after the modification. Each of the two defendants argued that res ipsa loquitur had no application because both of the two defendants could not have "exclusive control."

Judge Paul Hatfield rejected this narrow construction, holding that res ipsa loquitur had application to multiple defendants. Judge Hatfield said:

"LTV, et al., and the United States are the only parties arguably responsible for the accident since other defendant parties to this lawsuit have apparently been exonerated. Neither the United States nor LTV can escape the application of res ipsa loquitur under a narrow interpretation of the 'exclusive control' requirement. The facts as presently alleged suggest that defendants LTV, et al., and the United States are both subject to the doctrine. Nevertheless, if there is sufficient doubt as to control, that question can become one for the jury or trier of fact. Northwest Airlines, Inc. v. Rowe, 226 F.2d 365 (8th Cir. 1955) cited with approval Barnes v. Northwest Airlines, Inc., 233 Minn. 410, 47 N.W.2d 180 (1951)."

In Little v. Grizzly Manufacturing (1981), 38 St.Rep. 1994, 636 P.2d 839, this Court quoted the res ipsa loquitur doctrine from Whitney v. Northwest Greyhound Lines (1952), 125 Mont. 528, 533, 242 P.2d 257, wherein it is stated...